Alaska Wilderness v. Kempthorne ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALASKA WILDERNESS LEAGUE; 
NATURAL RESOURCES DEFENSE
COUNCIL, INC.; PACIFIC
ENVIRONMENT AND RESOURCES
CENTER,
v.
Petitioners,
 No. 07-71457
DIRK KEMPTHORNE, et al.,
Respondent,
SHELL OFFSHORE, INC.,
Respondent-Intervenor.

RESISTING ENVIRONMENTAL 
DESTRUCTION ON INDIGENOUS LANDS,
A PROJECT OF THE INDIGENOUS
ENVIRONMENTAL NETWORK;
CENTER FOR BIOLOGICAL
DIVERSITY AND SIERRA CLUB,
Petitioners,  No. 07-71989
v.
DIRK KEMPTHORNE, et al.,
Respondent,
SHELL OFFSHORE, INC.,
Respondent-Intervenor.

15551
15552 ALASKA WILDERNESS v. KEMPTHORNE
NORTH SLOPE BOROUGH; ALASKA 
ESKIMO WHALING COMMISSION,
Petitioners,
No. 07-72183

v.
DOI No. 2007-152
DIRK KEMPTHORNE, et al.,
Respondent, OPINION
SHELL OFFSHORE, INC.,
Respondent-Intervenor.

On Petition for Review of a Decision of the
Department of Interior
Argued and Submitted
December 4, 2007—San Francisco, California
Filed November 20, 2008
Before: Dorothy W. Nelson, Stephen Reinhardt, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge D.W. Nelson;
Dissent by Judge Bea
15556 ALASKA WILDERNESS v. KEMPTHORNE
COUNSEL
Christopher Winter, Crag Law Center, Portland, Oregon;
Deirdre A. McDonnell, Earthjustice, Juneau, Alaska, for the
petitioners.
David C. Shilton, United States Department of Justice, Wash-
ington, D.C., for the respondent.
Kyle W. Parker, Patton Boggs LLP, Anchorage, Alaska, for
the respondent-intervenor.
OPINION
D.W. NELSON, Senior Circuit Judge:
Petitioners are six organizations that support environmental
conservation, indigenous communities, and wildlife popula-
tions of Northern Alaska. They challenge the Minerals Man-
agement Service’s (“MMS”) approval of an exploration plan
submitted by Shell Offshore Inc. (“Shell”). Shell seeks to drill
multiple offshore exploratory oil wells over a three-year
period in the Alaskan Beaufort Sea.
Petitioners challenge the agency’s action under the
National Environmental Policy Act (“NEPA”), 42 U.S.C.
§§ 4321-4347, and the Outer Continental Shelf Lands Act
(“OCSLA”), 43 U.S.C. §§ 1331-56. Petitioners allege that
MMS failed to take the requisite “hard look” at the impact of
ALASKA WILDERNESS v. KEMPTHORNE 15557
drilling on the people and wildlife of the Beaufort Sea region
in violation of the standards set forth by NEPA, OCSLA, and
their implementing regulations. Petitioners also argue that
MMS erred by failing to prepare an environmental impact
statement (“EIS”) for the proposed exploration activities,
because of the potential for significant harmful effects on the
environment.
We have jurisdiction over all parties’ claims as each peti-
tion for review was timely filed. We vacate the agency’s
approval of Shell’s exploration plan, and remand so that
MMS can conduct the “hard look” analysis required by
NEPA.
FACTUAL AND PROCEDURAL BACKGROUND
I. Administrative Process
In April 2002, MMS issued a five-year plan establishing a
lease sale schedule for the Outer Continental Shelf (“OCS”)
of the Gulf of Mexico and Alaska. The plan envisions offer-
ing three separate lease sales in the Beaufort Sea. In February
2003, MMS prepared a detailed EIS to evaluate the overall
impacts of the activities projected to occur pursuant to these
lease sales (“multi-sale EIS”). The study analyzes the poten-
tial effects of oil exploration and production on the region’s
wildlife, environment, and subsistence activities. The multi-
sale EIS assumes that drilling would begin in 2007, and
would require a maximum of two drilling rigs, icebreakers,
supply boats, and floating platforms in waters deeper than
twenty meters. The multi-sale EIS also evaluates mitigation
measures that were developed through the cooperation of fed-
eral agencies, the State of Alaska, and Native Alaskans. These
measures include an extensive bowhead whale monitoring
program and a conflict avoidance process designed to protect
subsistence activities. The multi-sale EIS further notes: “Any
proposed exploration or development plans that may result for
any of the three OCS sales evaluated in this EIS, would
15558 ALASKA WILDERNESS v. KEMPTHORNE
require additional NEPA environmental analysis using site
specific information.”
In 2003, MMS held the first sale, Lease Sale 186, without
conducting further NEPA analysis. The agency held two sub-
sequent lease sales in July 2004 (Lease Sale 195), and August
2006 (Lease Sale 202), preparing a supplemental environmen-
tal assessment (“EA”) for each one. Both of these EAs
“tiered” to the multi-sale EIS. In the tiering process, the
agency looks to see if the proposed activities are covered by
the analysis in previous studies, whether additional mitigation
measures are needed, and what level of NEPA evaluation is
required. The leases at issue in this case were purchased in
July 2004, under Lease Sale 195.
OCSLA requires that a lessee obtain approval of an explo-
ration plan (“EP”) before beginning exploratory drilling. 30
C.F.R. § 250.201. The EP must include a project-specific
environmental impact analysis assessing the potential effects
of the proposed exploration activities. 30 C.F.R. § 250.227.
MMS reviews the EP, and the application is deemed “submit-
ted” when it “fulfills requirements and is sufficiently accu-
rate,” and the applicant has “provided all needed additional
information.” 30 C.F.R. § 250.231(a). MMS then conducts its
environmental review pursuant to NEPA, 30 C.F.R.
§ 250.232(c), and within thirty days issues a decision approv-
ing, disapproving, or requiring modifications to the EP. 30
C.F.R. § 250.233.
Shell’s proposed drilling activities are the first to be consid-
ered for the Beaufort Sea in conjunction with these lease
sales. In November 2006, Shell submitted the first version of
its EP for the Beaufort Sea region. Shell’s EP details its plan
to drill up to twelve exploratory wells on twelve lease tracts
in the Beaufort Sea over the next three years. The lease blocks
are grouped into five “prospects” and stretch from the Col-
ville River Delta eastward to the Canadian border. The Cor-
nell Prospect is fifteen to twenty miles offshore of the Colville
ALASKA WILDERNESS v. KEMPTHORNE 15559
River Delta, north of the Inupiat Eskimo village of Nuiqsut.
The Sivulliq Prospect is ten miles offshore in Camden Bay,
between the villages of Nuiqsut and Kaktovik. The Olympia
Prospect is located north of Kaktovik. The Fosters and Fire-
claw Prospects are located farther east, between Kaktovik and
the Canadian border.
In the first year of the plan, Shell aims to drill four wells
within the Sivulliq Prospect in Camden Bay. In the following
two years, “Shell proposes to drill an undetermined number
of wells on additional prospects . . . depending on the [initial]
drilling results.” Throughout this project, Shell plans to use
two drilling vessels, two icebreaking ships, various other sup-
ply boats, and up to six aircraft. All exploratory activities
would occur between June and mid-November as the Beaufort
Sea is frozen over for half of the year.
In December 2006, MMS issued its “Completeness Com-
ments” on Shell’s EP, indicating what information was still
needed before the EP would be considered properly submit-
ted. The agency asked Shell to clarify the specific drilling
locations for which it was seeking approval. MMS also sought
more information on the “potential impact of underwater
noise,” conflict avoidance mechanisms, and other mitigation
measures that could ameliorate the deleterious effects of the
exploratory drilling. The final version of Shell’s EP was sub-
mitted on January 12, 2007. The application included Shell’s
Environmental Report and an oil spill contingency plan. No
further detail was given identifying specific well locations for
the 2008 and 2009 seasons. MMS determined the application
was complete and began the approval process on January 17,
2007.
After receiving a completed EP, the agency has thirty days
to approve, disapprove, or require modification of a plan. 43
U.S.C. § 1340(c)(1); 30 C.F.R. § 250.233. Throughout this
time period, a number of agency experts expressed concern
about the potentially significant impacts the drilling would
15560 ALASKA WILDERNESS v. KEMPTHORNE
have on bowhead whales, polar bears, and the Inupiat subsis-
tence harvest.
Despite these concerns, MMS issued an eighty-seven page
EA and a Finding of No Significant Impact (“FONSI”) on
February 15, 2007. The EA “tiers” to the prior environmental
studies, pursuant to 40 C.F.R. § 1502.20. The EA states: “The
level and types of activities proposed in the Shell EP are
within the range of the activities described and evaluated in
the Beaufort Sea multiple-sale EIS . . . and updated in EA’s
[sic] for Sales 195 and 202.” The agency concluded that the
proposed activities “would not significantly affect the quality
of the human environment” or “cause ‘undue or serious harm
or damage to the human, marine, or coastal environment,’ ”
in accordance with 40 C.F.R. § 1508.27. As a result of this
finding, the agency did not prepare an EIS specific to this proj-
ect.1
On April 13, 2007, a group of Petitioners consisting of the
Alaska Wilderness League, the National Resources Defense
Council, and the Pacific Environment (collectively “AWL”),
filed a Petition for Review with this court. Simultaneously,
Petitioners representing the North Slope Borough and the
Alaska Eskimo Whaling Commission (collectively “NSB”)
filed an optional administrative appeal from the agency’s
decision with the Interior Board of Land Appeals (“IBLA”).
On May 4, 2007, the IBLA declined to exercise its jurisdic-
tion and stayed the administrative proceedings pending the
outcome of AWL’s Petition for Review.
1
MMS’s approval of the EP was subject to many conditions. Shell had
to: (1) obtain a determination from the State of Alaska that its operations
were consistent with the Alaska Coastal Management Plan; (2) take mea-
sures to avoid conflicts with subsistence harvests; and (3) get approval of
its project from both the National Marine Fisheries Service and the Fish
and Wildlife Service. The State of Alaska approved Shell’s plan on June
19, 2007. Shell reached a conflict avoidance agreement with local whaling
captains on July 24, 2007. On July 31, 2007, the Fish and Wildlife Service
issued its Letter of Authorization. The National Marine Fisheries Service
approved the project on October 25, 2007.
ALASKA WILDERNESS v. KEMPTHORNE 15561
Shell filed a Motion to Intervene on May 14, 2007. On May
15, NSB filed an independent Petition for Review. On May
22, 2007, Resisting Environmental Destruction on Indigenous
Lands (“REDOIL”), an organization representing a network
of Native Alaskans, filed its Petition for Review and a Motion
to Consolidate. This court consolidated the matter on July 2,
2007. On August 14, 2007, this court granted Petitioners’
motion to stay, ordering the agency’s decision inoperative
until this matter could be considered on the merits.
II. Beaufort Sea Resources and Wildlife
The Alaskan Beaufort Sea is part of the Arctic Ocean, bor-
dering Alaska’s north shore. It stretches from Point Barrow
and the Chukchi Sea in the west, to the Canadian border in the
east. The Beaufort Sea is home to a wide range of fish, mam-
mal, and bird species. The Western Arctic stock of bowhead
whales lives within the Beaufort region. Bowhead whales are
designated as an endangered species under 50 C.F.R.
§ 17.11(h). These creatures may live over 100 years and do
not reach sexual maturity until fifteen to twenty years. Once
they attain maturity, they reproduce roughly every three years.
The Western Arctic group migrates twice annually. In the
spring, they move eastward from the Bering Strait, through
the Alaskan Beaufort Sea, and into summer feeding grounds
in the Canadian Beaufort Sea. Most calves are born in the
Chukchi Sea prior to entering the Beaufort. During September
and October, the whales reverse course and head back to the
Bering Strait. The whales spend considerable time feeding in
the Alaskan Beaufort during both phases of their migratory
pattern.
Bowhead whales are sensitive to noise in the marine envi-
ronment. The noise generated by icebreakers and drillships
has the potential to cause serious consequences for bowhead
whales. The impacts of a specific project would vary depend-
ing on the placement, quantity, and quality of vessels operat-
ing at each site. High levels of underwater noise can cause
15562 ALASKA WILDERNESS v. KEMPTHORNE
temporary or permanent hearing damage. Even low levels of
noise can affect the biological functions and behavioral pat-
terns of marine mammals. In particular, increased noise can
cause avoidance behaviors that displace migratory routes.
Females traveling with young calves may be especially sus-
ceptible to harm, as disturbances could separate a dependent
from its caregiver.
The Inupiat Eskimos reside on the north coast of Alaska
and have long relied upon the resources of the Beaufort Sea
and its environs for subsistence. Eight different villages are
scattered along the coast. As noted by the multi-sale EIS:
[T]his close relationship between the spirit of a peo-
ple, their social organization, and the cultural value
of subsistence hunting may be unparalleled when
compared with other areas in America where energy
development is taking place. The Inupiat’s continu-
ing strong dependence on subsistence foods, particu-
larly marine mammals and caribou, creates a unique
set of potential effects from onshore and offshore oil
exploration and development on the social and cul-
tural system.
Subsistence activities are an important component of the
Inupiat’s long-term health, as this diet and lifestyle protects
against degenerative health risks. Further, as the multi-sale
EIS states, “[s]ubsistence activities are assigned the highest
cultural values by the Inupiat and provide a sense of identity
in addition to being an important economic pursuit.”
Bowhead whales are an important subsistence resource for
the Inupiat. The harvest of bowhead whales is regulated by
the International Whaling Commission, which sets guidelines
on the number of whales that can be taken for subsistence
purposes. The whale hunt is a dangerous and arduous process
for Inupiat whalers, but it produces large amounts of meat
consumed by Inupiat communities. Shell’s proposed activities
ALASKA WILDERNESS v. KEMPTHORNE 15563
take place in and adjacent to the subsistence bowhead whale
hunting grounds for the villagers of both Nuiqsut and Kak-
tovik. As a result, there is the potential that Shell’s activities
may disrupt the Inupiat whaling activities.
STANDARDS OF REVIEW
Review of claims under NEPA and OCSLA are governed
by the Administrative Procedure Act, 5 U.S.C. § 706(“APA”). Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land
Mgmt., 387 F.3d 989, 992 (9th Cir. 2004). “The agency’s
actions, findings, and conclusions will be set aside if they are
‘arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.’ ” Id. (quoting 5 U.S.C. § 706(2)(A)).
Our review under the APA is “narrow but searching and care-
ful.” Gifford Pinchot Task Force v. U.S. Fish & Wildlife
Serv., 378 F.3d 1059, 1065 (9th Cir. 2004) (internal quotation
marks omitted). OCSLA further states that an agency’s find-
ings, “if supported by substantial evidence on the record con-
sidered as a whole, shall be conclusive.” 43 U.S.C.
§ 1349(c)(6).
We review a decision to forego preparation of an environ-
mental impact statement under the arbitrary and capricious
standard. Nat’l Parks & Conservation Ass’n v. Babbitt, 241
F.3d 722, 730 (9th Cir. 2001). We look to whether the agency
has: (1) taken a “hard look” at the potential impact of its
actions; (2) considered all of the relevant factors in its deci-
sion; and (3) provided an adequate statement of reasons to
explain why a project’s impacts are insignificant. Id. We will
not substitute our judgment for that of the agency, but must
“engage in a substantial inquiry” and a “thorough, probing,
in-depth review.” Native Ecosystems Council v. U.S. Forest
Serv., 418 F.3d 953, 960 (9th Cir. 2005) (quoting Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16
(1971)).
15564 ALASKA WILDERNESS v. KEMPTHORNE
DISCUSSION
I. Jurisdiction over NSB and REDOIL’s Petitions for
Review
[1] This court has jurisdiction over all claims before us.
Respondents unsuccessfully argue that NSB and REDOIL’s
petitions should be dismissed as untimely. OCSLA’s jurisdic-
tional provision provides that a petition for review must be
filed with the court within sixty days of any contested action.
43 U.S.C. § 1349(c)(3). Respondents assert that the “action”
at issue here is MMS’s approval of Shell’s EP on February
15, 2007. Under this logic, the sixty-day time limit expired on
April 16, 2007, and jurisdiction would therefore be barred
over the petitions filed by NSB on May 15, 2007, and
REDOIL on May 22, 2007.
[2] However, since NSB and REDOIL utilized the adminis-
trative appeal process, the sixty-day deadline did not begin to
run on February 15, 2007. NSB and REDOIL filed an
optional appeal of the agency’s decision with the IBLA on
April 13, 2007, pursuant to 30 C.F.R. § 290.2. This optional
appeal was filed within the sixty-day timeline established by
30 C.F.R. § 290.3. On May 4, 2007, the IBLA declined to
exercise its jurisdiction and stayed further proceedings pend-
ing the outcome of AWL’s petition, already filed in this court.
The statute of limitations was tolled during the administrative
appeal process, and the sixty-day period to file a petition for
review began to run after the IBLA issued its decision on May
4.2 See ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 284-
2
The IBLA’s May 4, 2007, decision “suspended” the administrative
proceedings in light of the fact that the IBLA would lose jurisdiction over
the appeals when the administrative record was filed with this Court as
part of AWL’s petition for review. See 43 U.S.C. § 1349(c)(7); see also
id. § 1349(c)(5) (“The Secretary shall file in the appropriate court the
record . . . .”) (emphasis added). The IBLA suspended the proceedings
because, at the time of its decision, it did not know whether the adminis-
ALASKA WILDERNESS v. KEMPTHORNE 15565
85 (1987) (holding that a timely petition for administrative
review stops the running of the statute of limitations). By fil-
ing on May 15 and May 22, the organizations petitioned for
review well within the statutory time period.3
[3] Respondents’ argument that tolling does not apply in
this context is unavailing. For purposes of judicial review, the
filing of an optional administrative appeal renders MMS’s
February 15, 2007 decision non-final. See Acura of Bellevue
v. Reich, 90 F.3d 1403, 1407 (9th Cir. 1996) (“We hold that
exercise of an optional appeal to a Department ALJ renders
the initial Administrator’s decision nonfinal for purposes of
judicial review under the APA.”). The statute of limitations
was tolled while the administrative appeal was pending. See,
e.g., Bhd. of Locomotive Eng’rs, 482 U.S. at 284-85.
Respondents assert that the Supreme Court’s decision in
Stone v. INS, 514 U.S. 386 (1995), limits the availability of
tolling in this context. To the contrary, Stone in fact reiterates
the strength of the “conventional tolling rule” during adminis-
trative appeals. 514 U.S. at 391-92, 398. That case dealt with
trative record had already been filed by MMS or when it would be filed.
Thus, it lacked the information necessary to dismiss the appeals for lack
of jurisdiction. Nonetheless, the IBLA’s May 4, 2007, decision was “final”
because it effectively terminated the appeals: the IBLA could not reopen
the appeals after the filing of the administrative record divested the IBLA
of jurisdiction because, under § 1349(c)(7), the decision issued by this
Court would be “final.”
3
The dissent ignores Brotherhood of Locomotive Engineers in suggest-
ing that the sixty-day time limit ran during the period between the Secre-
tary’s decision and the filing of the administrative appeals and that NSB
and REDOIL thus had only three days to file their petitions for review
upon completion of the IBLA proceedings. Under Brotherhood of Loco-
motive Engineers, the statutory time limit does not begin to run until the
administrative appeal is terminated. See 482 U.S. at 276 (considering only
whether the petition for administrative review was filed “within the period
prescribed by” the agency’s rules).
15566 ALASKA WILDERNESS v. KEMPTHORNE
a very specific jurisdictional provision in the Immigration and
Nationality Act (“INA”). The statute stated:
[W]henever a petitioner seeks review of an order
under this section, any review sought with respect to
a motion to reopen or reconsider such an order shall
be consolidated with the review of the order.
8 U.S.C. § 1105a(a)(6) (1988) (current version at 8 U.S.C.
§ 1252(b)(6) (2005)). The Court examined the statutory lan-
guage and the legislative history to conclude that the “statute
is best understood as reflecting an intent on the part of Con-
gress that deportation orders are to be reviewed in a timely
fashion after issuance, irrespective of the later filing of a
motion to reopen or reconsider.” Stone, 514 U.S. at 394. The
Court deviated from the general tolling principle because of
specific indications from Congress that it intended such a
result. Id. at 393 (“Congress chose to depart from the ordinary
judicial treatment of agency orders under reconsideration”);
see also id. at 398 (this provision “is best understood as
reflecting [Congress’s] expectation that in the particular con-
text of INS deportation orders the normal tolling rule will not
apply.”).
The jurisdictional statute in OCSLA is not analogous to the
INA statute at issue in Stone. The statute in Stone directly
addressed the relationship between judicial review and agency
reconsideration. See 8 U.S.C. § 1105a(a)(6) (1988). OCSLA’s
jurisdictional provision uses standard language that does not
suggest any intent to diverge from general tolling principles.
See 43 U.S.C. § 1349. The statute generically states that peti-
tions for review must be filed “within sixty days after the date
of such action.” Id. § 1349(c)(3). There is no indication here
that Congress intended to depart from established tolling prin-
ciples. Additionally, permitting tolling does not frustrate the
prompt implementation of MMS action. The regulations pro-
vide that the agency’s decisions remain in effect during an
administrative appeal, unless a stay is granted. 30 C.F.R.
ALASKA WILDERNESS v. KEMPTHORNE 15567
§ 290.7(a). MMS decisions can therefore have immediate
effect, unless a reviewing body has legitimate reason to grant
a stay.
[4] The dissent erroneously argues that 43 U.S.C. § 1349(c)
prohibits any internal administrative appeal of the Secretary’s
decision to approve an exploration plan. However, that sec-
tion prohibits only other forms of judicial review and is silent
as to administrative review. Sections (c)(1) through (c)(3) by
their own terms apply only to “judicial review,” and sections
(c)(5) through (c)(7) establish rules for that judicial review.
The only possible basis for the dissent’s conclusion is section
(c)(4), which provides that “[a]ny action of the Secretary
specified in paragraph (1) or (2) shall only be subject to
review pursuant to the provisions of this subsection, and shall
be excluded from citizen suits which are permitted pursuant
to subsection (a) of this section.” Id. Notably, the latter half
of § 1349(c)(4), like the remainder of § 1349(c), is concerned
exclusively with judicial review. In this statutory context, it is
clear that, just like every other provision of § 1349(c), the “re-
view” covered by the first half of § 1349(c)(4) is judicial
review: Section 1349(c)(4) simply preempts other statutory
avenues for judicial review, such as the Administrative Proce-
dure Act. Because § 1349(c) is silent as to the availability or
timing of administrative review, general principles of admin-
istrative tolling, as exemplified in Brotherhood of Locomotive
Engineers, apply, and the sixty-day deadline did not begin to
run until the IBLA issued its decision on May 4, 2007.
[5] NSB and REDOIL did not relinquish their opportunity
for judicial review by opting to file an administrative appeal
first. The statute of limitations was tolled during the appeal
process, and petitions for review were filed well within sixty
days after the IBLA issued its order. Accordingly, we have
jurisdiction over all parties.
15568 ALASKA WILDERNESS v. KEMPTHORNE
II. Compliance With NEPA “Hard Look” Review
A. Statutory Background
OCSLA provides for a four-stage process for oil and gas
development, with NEPA review at each stage. See Sec’y of
the Interior v. California, 464 U.S. 312, 337 (1984) (delineat-
ing the “four distinct statutory stages to developing an off-
shore well,” each requiring “separate regulatory review”). The
process involves: (1) preparation of a lease-sale schedule; (2)
lease sales; (3) exploration of the lease-sale area; and (4)
development and production. Id. The continuing review pro-
cess allows an agency to adjust its analysis to make sure
energy production activities are conducted in an environmen-
tally sound manner. The case before us involves exploration,
the third stage of the process. At this phase, a lessee submits
an EP for review and approval. 43 U.S.C. § 1340(c). The
agency has thirty days to review the EP. Id. § 1340(c)(1). The
agency must disapprove the plan if it would result in “serious
harm or damage” to the marine, coastal, or human environ-
ment. See 43 U.S.C. § 1334(a)(2)(A)(i).
As noted by the Supreme Court, “NEPA declares a broad
national commitment to protecting and promoting environ-
mental quality.” Robertson v. Methow Valley Citizens Coun-
cil, 490 U.S. 332, 348 (1989). NEPA ensures that an agency
“will have available, and will carefully consider, detailed
information concerning significant environmental impacts; it
also guarantees that the relevant information will be made
available to the larger audience that may also play a role in
both the decisionmaking process and the implementation of
that decision.” Id. at 349.
NEPA requires that, “to the fullest extent possible,” all fed-
eral agencies shall prepare an EIS when considering proposed
activities “significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332; Robertson, 490 U.S. at 348;
see also Blue Mountains Biodiversity Project v. Blackwood,
ALASKA WILDERNESS v. KEMPTHORNE 15569
161 F.3d 1208, 1212 (9th Cir. 1998) (threshold question in
NEPA challenge is “whether a proposed project will ‘signifi-
cantly affect’ the environment, thereby triggering the require-
ment for an EIS” (quoting 42 U.S.C. § 4332(2)(C)). An
agency may first prepare a less exhaustive EA to determine
whether an EIS is necessary. 40 C.F.R. § 1508.9; Nat’l Parks
& Conservation Ass’n v. Babbitt, 241 F.3d 722, 730 (9th Cir.
2001). An EA is a “concise public document” that “[b]riefly
provide[s] sufficient evidence and analysis for determining
whether to prepare an [EIS] or a [FONSI].” 40 C.F.R.
§ 1508.9(a). “Because the very important decision whether to
prepare an EIS is based solely on the EA, the EA is funda-
mental to the decision-making process.” Metcalf v. Daley, 214
F.3d 1135, 1143 (9th Cir. 2000). An EA is sufficient if it pro-
vides enough “evidence and analysis for determining whether
to prepare an [EIS] or a [FONSI].” Anderson v. Evans, 371
F.3d 475, 488 (9th Cir. 2004). Federal regulations encourage
agencies to tier their environmental analyses in order to
streamline and focus the review process. 40 C.F.R. § 1502.20(“Whenever a broad [EIS] has been prepared . . . the subse-
quent statement or environmental assessment need only sum-
marize the issues discussed in the broader statement and
incorporate discussions from the broader statement by refer-
ence and shall concentrate on the issues specific to the subse-
quent action.”).
[6] “[A]n EIS must be prepared if ‘substantial questions are
raised as to whether a project . . . may cause significant degra-
dation of some human environmental factor.’ ” Idaho Sport-
ing Congress v. Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998)
(quoting Greenpeace Action v. Franklin, 14 F.3d 1324, 1332
(9th Cir. 1992)). If an agency finds an EIS is not required and
issues a FONSI, it must provide a “convincing statement of
reasons” to explain its decision. Blue Mountains, 161 F.3d at
1212; see also 40 C.F.R. §§ 1501.4(e), 1508.13. An agency
cannot rely on mere “conclusory assertions that an activity
will have only an insignificant impact on the environment.”
Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d
15570 ALASKA WILDERNESS v. KEMPTHORNE
846, 864 (9th Cir. 2005). Rather, the agency must demon-
strate that it took the requisite “hard look” at the potential
environmental impacts of a project, thereby justifying its
action. Blue Mountains, 161 F.3d at 1212; Ocean Advocates,
402 F.3d at 864; Kern v. U.S. Bureau of Land Mgmt., 284
F.3d 1062, 1066-67 (9th Cir. 2002).
To provide guidance on how NEPA should be applied, the
Council on Environmental Quality promulgated regulations
explaining what factors an agency must consider in determin-
ing if a project’s potential effects are “significant.” See 40
C.F.R. § 1508.27. This requires “considerations of both con-
text and intensity.” Id. Context refers to the location and inter-
ests that would be affected by the proposed action. Id.§ 1508.27(a). Intensity refers to “the severity of the impact.”
Id. § 1508.27(b). In considering intensity, an agency should
consider up to ten factors that shed light on the “significance”
of a project. Id. Those factors include: the effect on public
health and safety; the unique characteristics of the geographic
area; the degree to which the effects on the quality of the
human environment are likely to be highly controversial; the
degree to which the possible effects are highly uncertain or
involve unknown risks; and the possible impacts on an endan-
gered or threatened species. Id. §§ 1508.27(b)(2), (3), (4), (5),
(7).
B. Sufficiency of MMS’s Environmental Analysis
MMS has not provided a convincing statement of reasons
explaining why Shell’s exploratory drilling plans at these spe-
cific sites would have an insignificant impact on bowhead
whales and Inupiat subsistence activities. As a result, we are
unpersuaded that MMS took the requisite “hard look” at the
environmental impact of this project. There remain substantial
questions as to whether Shell’s plan may cause significant
harm to the people and wildlife of the Beaufort Sea region.
Respondents’ primary response is that, through the tiering
process, the agency sufficiently analyzed all possible environ-
ALASKA WILDERNESS v. KEMPTHORNE 15571
mental impacts of this project. The EA is “tiered” to the
multi-sale EIS and the EAs for Lease Sales 195 and 202 pur-
suant to 40 C.F.R. § 1502.20. According to Respondents, any
analysis that is allegedly missing from the EA is adequately
covered in those previous documents. Respondents point out
that OCSLA only allows thirty days to approve an EP, see 43
U.S.C. § 1340(c)(1), and argue that this short statutory dead-
line encourages a streamlined review process. The agency
may not, however, hide behind the cloak of its generalized
multi-sale EIS. NEPA applies to all stages of the OCSLA
cycle. Vill. of False Pass v. Clark, 733 F.2d 605, 614 (9th Cir.
1984). When the agency is tasked with assessing the environ-
mental impacts of a particular exploration plan, it has a duty
to take a hard look at the consequences of drilling in specific
sites. As the agency itself noted in the multi-sale EIS, “[a]ny
proposed exploration or development plans that may result for
[the area] evaluated in this EIS, would require additional
NEPA environmental analysis using site specific informa-
tion.” MMS’s environmental analysis is inadequate because it
fails to consider the impacts this specific project will have on
bowhead whales and Inupiat subsistence activities.
1. Impacts on Bowhead Whales
MMS’s EA fails to take a hard look at whether Shell’s
exploratory drilling program would have a “significant” effect
on bowhead whales, an endangered species. See 40 C.F.R.
§ 1508.27(b)(9) (agency should consider “degree to which the
action may adversely affect an endangered or threatened spe-
cies”). The EA lacks sufficient analysis on the consequences
of underwater noise and its impact on bowheads’ migratory
routes. Although the presence of some negative effects does
not mandate a finding of significant impact, the agency must
“consider the degree of adverse effect on a species.” Env’t
Protection Info. Center (EPIC) v. U.S. Forest Serv., 451 F.3d
1005, 1010-11 (9th Cir. 2006); see also Native Ecosystems
Council, 428 F.3d at 1240-41 (any mention of an adverse
15572 ALASKA WILDERNESS v. KEMPTHORNE
impact does not necessarily compel an EIS, but an agency
should not use a “soft touch or brush-off of negative effects”).
[7] The major shortcoming of the agency’s environmental
analysis is that it does not assess the impacts that would be
felt by the bowhead whale population from a project in the
migratory route that involves two drillships and two icebreak-
ers. The multi-sale EIS envisions “[a] maximum of two drill-
ing rigs” would be used during this time, and the EA
“assumed that two drilling rigs with icebreaker support might
operate during any year.” However, aside from nominally
mentioning the possible extent of this project, the studies
relied upon by the agency do not actually assess the potential
significance of underwater noise from a drilling operation of
this scope.
[8] The multi-sale EIS discusses, in a general sense, the
impact of noise on bowhead whales, citing a number of
studies that have been conducted on the topic. However, that
document contains no studies that analyze the effects of noise
from a project with two drillships and two icebreakers. The
studies assessing the effect of noise in other situations suggest
that bowheads respond to drilling noise by altering their
migration speed and swimming direction to avoid closely
approaching the noise sources. In discussing icebreaker noise,
the multi-sale EIS states, “[e]ffects of an actual icebreaker on
migrating bowheads, especially mothers and calves, could be
biologically significant.” Moreover, studies cited in the multi-
sale EIS use varying methodologies and come to inconclusive
results. Many of these reports use noise simulations, but there
is limited data on how bowheads would respond in an uncon-
trolled setting. The reports state: “There are no observations
of bowhead reactions to icebreakers breaking ice,” and “play-
back results may somewhat understate the differences
between truly undisturbed whales versus those exposed to
playbacks.” The generalized information contained in the
multi-sale EIS does not adequately demonstrate that the
agency has taken a hard look at the effects of Shell’s project
ALASKA WILDERNESS v. KEMPTHORNE 15573
on bowhead whales. After making the observation that noise
could cause significant biological effects, there is not addi-
tional information that supports why any specific project
would not cause real harm to whale populations. In particular,
it is not evident from the multi-sale EIS that a project using
the type of equipment proposed by Shell would not have a
significant impact on bowhead whales.
The EA does not cure this infirmity. The EA gives only a
brief description of the level of noise the individual drillships
in Shell’s proposal could make, but does not examine the
combined effect of all vessels operating simultaneously. The
agency’s analysis relies in large part on a biological opinion
(“BiOp”) prepared by the National Marine Fisheries Service
(“NMFS”) in 2006. MMS asserts that the BiOp “covers the
proposed Shell operations” because it assumed a situation
where two drilling rigs with icebreaker support would operate
in an area covering up to twelve wells. But there is no indica-
tion that the BiOp in fact relies on studies involving two drill-
ships and two icebreakers. The BiOp acknowledges that the
“potential total adverse effects of long-term added noise, dis-
turbance, and related avoidance of feeding and resting habitat
. . . are unknown.” In addition, “[t]here has been no docu-
mented evidence that noise from previous OCS operations has
served as a barrier to migration,” but “[c]oncentrations of loud
noise and disturbance activities during the open water period
have the potential to cause large numbers of bowheads to
avoid using areas for resting and feeding for long periods of
time . . . while the noise producing activities continue.” This
analysis indicates that there are serious concerns and
uncertainties about the manner in which the endangered bow-
head population would respond to Shell’s three year explor-
atory drilling plan. Despite these concerns, the BiOp goes on
to allege that “bowhead whales exposed to noise-producing
activities . . . most likely would experience temporary, nonle-
thal effects.” It comes to the conclusion that “such exploratory
drilling would not jeopardize the population.” This determina-
15574 ALASKA WILDERNESS v. KEMPTHORNE
tion is not supported by the BiOp’s contrary assertions that
noise could cause serious adverse effects.
MMS realizes the distinguishing characteristics between
Shell’s specific proposal and the scope of prior studies, but
does not then engage in any additional analysis. The agency
admits in the EA that, “in the past, operations with one drill
ship and associated icebreakers have displaced the migration
slightly, and no whales were sighted between the operations
and shore, but it is unknown what the increased level of effect
of two proposed drillships and associated icebreakers and
other attendant vessels would be.” In MMS’s own review of
a 1993 monitoring study, the agency notes that the report “de-
tected behavioral changes in bowheads around drillship oper-
ations near Camden Bay.” MMS goes on to state:
With regards to the MMS significance criteria, there
is no evidence that the offshore displacement . . .
persisted for more than a generation (about 17
years). So, the level of effect of a drillship in Cam-
den Bay is probably not significant by MMS NEPA
standards. However, the same type of displacement
to the east of Kaktovik where whales frequently feed
would affect growth and could have a more serious
biological effect. Also, even though there isn’t a sig-
nificant biological effect from in Camden Bay opera-
tions, there could be a significant sociocultural effect
if the bowheads do not migrate back into the shore-
ward portion of the migration corridor as they
approach Cross Island.
Notably, the EA also states that the “effect on bowheads is
likely to be greater than for [the 1993 activities] because of
Shell’s proposal to use two drillships, two large icebreakers,
and several associated vessels.” Although the agency men-
tions the possibility for increased impacts on bowhead whales
and the human populations who depend on them, it fails to
ALASKA WILDERNESS v. KEMPTHORNE 15575
take a hard look at whether a proposal of this magnitude will
have significant impacts on this endangered species.
The agency’s attempt to rely upon a monitoring program as
a mitigation measure is similarly ill-founded. This section of
the EA ends with a discussion of “Stipulation No. 4” which
requires that Shell conduct a site-specific whale monitoring
program during its drilling operations. Instead of insisting on
alternative mitigation measures or conducting a full EIS at
this time, MMS states it “has the authority to modify
approved operations to ensure that significant biological pop-
ulations or habitats deserving protection are not subject to a
threat of serious, irreparable, or immediate harm.”
[9] Federal regulations define “mitigation” as a way to
avoid, minimize, rectify, or compensate for the impact of a
potentially harmful action. 40 C.F.R. §§ 1508.20(a)-(e). An
agency can rely upon mitigation measures in determining
whether an environmental impact is significant. See Nat’l
Parks & Conservation Ass’n, 241 F.3d at 734. In order to be
effective, a mitigation measure must be supported by analyti-
cal data demonstrating why it will “constitute an adequate
buffer against the negative impacts that may result from the
authorized activity.” Id. A mitigation measure must render
potential impacts “so minor as to not warrant an EIS.” Id. The
proposed monitoring program fails this test, as it could detect
impacts only after they have occurred. MMS’s statement that
it would reserve the authority to modify approved operations
does not provide enough protection under this standard. A
court must be able to review, in advance, how specific mea-
sures will bring projects into compliance with environmental
standards. See id. at 733 (“The Parks Service proposes to
increase the risk of harm to the environment and then perform
its studies. . . . This approach has the process exactly back-
wards.”). Monitoring may serve to confirm the appropriate-
ness of a mitigation measure, but that does not make it an
adequate mitigation measure in itself. See EPIC, 451 F.3d at
1015-16.
15576 ALASKA WILDERNESS v. KEMPTHORNE
[10] After considering the gaps in the multi-sale EIS and
the EA, we conclude that the agency failed to take a “hard
look” under NEPA because it did not provide a well-reasoned
analysis of site-specific impacts to the endangered bowhead
whale population. The tiered OCSLA process allows general
analysis at the lease-sale stage, but the agency must then con-
sider site-specific impacts before approving an individual
exploration plan. See Pit River Tribe v. U.S. Forest Serv., 469
F.3d 768, 784 (9th Cir. 2006) (holding that agency could not
rely on “vague prior programmatic statements,” but needed to
consider “site-specific impacts” when a “critical decision has
been made to act” on a lease sale); Vill. of False Pass v. Watt,
565 F. Supp. 1123, 1135 (D. Alaska 1983) (“[A] purpose of
OCSLA is to permit an expedient resolution of preliminary
matters in the development of oil lands while preserving
administrative and judicial review for future times when
potential threats to the environment are readily visualized and
evaluated.”).
As the agency itself notes in the multi-sale EIS, the tiered
approach “builds on the premise that as both the agencies and
companies involved move from general planning, to leasing,
to exploration . . . the specificity of the information improves.
The accompanying environmental analysis that flows from
each stage also is more specific with respect to location, tim-
ing, and magnitude.” The EA contains the names of Shell’s
drilling vessels (the Kulluk and the Frontier Discoverer) and
icebreakers (the Kapitan Dranitzyn and the Vladimire Ignat-
yuk), and mentions the other vessels Shell intends to use.
However, merely noting the details of Shell’s EP does not
demonstrate that the effects of this plan were actually ana-
lyzed. The results of the studies in the multi-sale EIS and EA
were inconclusive. The agency may not rely on past studies
on the general impact of noise on bowhead whales to justify
its failure to conduct a particularized assessment here. This is
especially true when past studies acknowledged that noise
levels may, in certain circumstances, cause significant distur-
bances to whales. Additionally, MMS’s analysis should take
ALASKA WILDERNESS v. KEMPTHORNE 15577
a closer look at the locations of Shell’s individual wells in
relationship to the migratory patterns of the bowhead whales.
[11] In sum, MMS abrogated its NEPA duties because nei-
ther the EA nor the documents it tiers to considers the specific
parameters and potential dangers of Shell’s project. There is
substantial uncertainty about how various levels of noise
would affect whales and their migratory patterns. See 40
C.F.R. §§ 1508.27(b)(5), (9) (in its review, agency should
consider degree to which possible effects to the environment
are highly uncertain, as well as how action may adversely
affect an endangered species). Furthermore, the proposed mit-
igation measure does not save the plan because it is not clear
that a monitoring program will ameliorate potentially serious
negative impacts. See Nat’l Parks & Conservation Ass’n, 241
F.3d at 734.
2. Impacts on Inupiat Subsistence Activities
i. Bowhead Whale Harvest
[12] MMS also failed to take a “hard look” at the effects
Shell’s project would have on the Inupiat’s subsistence uses
of bowhead whales. The agency’s review should consider
how the proposal affects public health or safety, and the
degree to which its impact on the human environment is
unknown or highly controversial. 40 C.F.R. §§ 1508.27(b)(2),
(4), (5). MMS defines a “significant” effect on a sociocultural
system as: “A chronic disruption of sociocultural systems that
occurs for a period of 2-5 years, with a tendency toward the
displacement of existing social patterns.”
[13] As discussed above, MMS did not adequately evaluate
the consequences of drilling in these specific locations on
bowhead whale populations. That same analysis applies to the
effect the drilling plan will have on the bowhead whale har-
vest and the important role this tradition plays in Inupiat cul-
ture. MMS’s failure to consider the parameters of Shell’s plan
15578 ALASKA WILDERNESS v. KEMPTHORNE
results in an inadequate analysis of the impacts of this pro-
posal on communities that rely on bowhead whales for subsis-
tence. The EA itself notes that even if underwater noise does
not cause a significant biological effect for the whales them-
selves, “there could be a significant sociocultural effect if the
bowheads do not migrate back” into the “migration corridor.”
MMS acknowledges this possibility, but then comes to the
inexplicable conclusion that this project can proceed without
other modifications. The agency further states that “ideally,
drilling and high resolution seismic activity would not deflect
whales until . . . whalers had harvested whales,” but does not
give any rationale explaining why it expects this ideal sce-
nario will occur. The EA itself admits that “it is unknown
what the increased level of effect of two proposed drillships
and associated icebreakers and other attendant vessels would
be.”
[14] Without examining the possible level of disruption to
the Inupiat harvest of bowhead whales, MMS offers only
“conclusory assertions” that impacts will not be significant.
See Ocean Advocates, 402 F.3d at 864-66 (holding that Army
Corps of Engineers failed to take “hard look” where its
assessment included only conclusory assertions and did not
discuss contrary evidence). Accordingly, Petitioners correctly
posit that the agency must conduct greater analysis of how
Shell’s activities in these particular locations, using two drill-
ships and two icebreakers, will affect the Inupiat’s reliance on
the bowhead harvest.
MMS asserts that any threat to the Inupiat’s subsistence
whaling would be minimized through a conflict avoidance
agreement. Again, the deficiencies in the agency’s analysis
are not cured through its proposed mitigation measure. In
order to rely on mitigation to obviate further analysis, the
measure must be identified and its effectiveness analyzed.
Nat’l Parks & Conservation Ass’n, 241 F.3d at 733-36 (hold-
ing EIS must be prepared where monitoring and mitigation
measures were uncertain). Additionally, “[m]itigation must be
ALASKA WILDERNESS v. KEMPTHORNE 15579
discussed in sufficient detail to ensure that environmental
consequences have been fairly evaluated.” Neighbors of
Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1380
(9th Cir. 1998) (internal quotation marks and citation omit-
ted). The agency must provide analytic data on the efficacy of
a proposed measure, and the court must decide whether it
“will render such impacts so minor as to not warrant an EIS.”
Nat’l Parks & Conservation Ass’n, 241 F.3d at 734.
[15] The conflict avoidance agreement process is too vague
and uncertain as a mitigation measure to justify the agency’s
decision not to engage in further analysis. Conflict avoidance
agreements come about through a voluntary process and are
renegotiated every year. The agency is not party to the pro-
cess, and any agreement made is not legally binding. The EA
itself notes that without an agreement, there are serious ques-
tions about whether the project would have significant
impacts on Inupiat communities. The agency states: “Without
such conflict avoidance measures in place, significant impacts
to the subsistence resources and hunts for bowhead whales,
seals, and polar bears could occur.” It goes on to say: “Only
a carefully constructed and monitored [conflict avoidance
agreement] could produce some remedy to disturbances to
bowhead whales and the subsistence hunt.” The language
used by MMS reveals the real risks this project poses to the
bowhead population and Inupiat communities. An annual vol-
untary re-negotiation process does not sufficiently mitigate
the concerns raised by Petitioners and acknowledged by the
agency.
[16] Simply because conflict avoidance agreements have
been used effectively in the past does not mean that an agency
can rely on them to cure inadequacies in the environmental
assessment.4 MMS abdicates its responsibility for analyzing
4
Before drilling operations were stayed by this court in August 2007,
Shell and the local whaling captains negotiated a year-long agreement that
would have deferred drilling operations until after completion of the Nuiq-
sut whale hunt.
15580 ALASKA WILDERNESS v. KEMPTHORNE
the effects on subsistence whaling by leaving it up to the par-
ties to come up with their own agreement, outside of the
NEPA review process. MMS does provide that, if the parties
fail to reach an agreement, MMS may re-examine the situa-
tion and make a “final determination on the adequacy of the
measures taken to prevent unreasonable conflicts with subsis-
tence harvests.” However, this provision is not sufficient to
meet the agency’s obligations. There is still no analytical data
that shows how the process would reduce the impact to whal-
ing below the level of significance. See Nat’l Parks & Con-
servation Ass’n, 241 F.3d at 734 (citing Idaho Sporting
Congress, 137 F.3d at 1151). By relying on the uncertain out-
come of the conflict avoidance agreement process, the agency
deprives this court of its ability to review whether the measure
is sufficiently protective. In sum, the agency is not relieved of
its responsibility to conduct more specific analysis on how
this project will affect the Inupiat harvest of bowhead whales.
ii. Other Subsistence Activities
Shell’s activities will also affect other Inupiat subsistence
resources, such as beluga whales, caribou, and fish. Petition-
ers urge the agency to take a closer look at the impacts of
exploration because of the proximity of the proposed activi-
ties to the Inupiat hunting and fishing grounds. The EA’s
comments focus almost entirely on the subsistence use of
bowhead whales. It notes only in one sentence that “helicopter
and aircraft supply flights have the potential to disturb caribou
movements and alter the subsistence hunt.” The multi-sale
EIS takes a cursory glance at these other animal populations,
stating that drilling activities “could affect the availability of”
beluga whales to subsistence hunters. The study further
acknowledges that flight activity may disturb caribou popula-
tions.5
5
In a separate agreement, Shell has agreed to keep helicopter traffic
above 1,500 feet to minimize any interference with the caribou hunt.
ALASKA WILDERNESS v. KEMPTHORNE 15581
The biggest gap in the agency’s multi-sale EIS and EA is
the lack of both information and analysis examining the
impacts this project will have on fish populations. In analyz-
ing fish populations, the EA acknowledges: “Given scientific
uncertainty surrounding how several important fish species
would react to varying levels of drilling program noise, we
believe it possible there will be more than a minimal level of
effect on some species.” MMS acknowledges that it “cannot
concur” with Shell’s assurances that its activities “may have
minimal to no impact on fish.” The agency goes on to state:
The MMS also cannot concur that the effects on all
fish species would be ‘short term’ or that these
potential effects are insignificant, nor would they be
limited to the ‘. . . localized displacement of fish
. . .’, because they could persist for up to five months
each year for three consecutive years and they could
occur during critical times in the life cycle of impor-
tant fish species.
The MMS remains concerned that the potential
adverse effects described for several fish species will
occur to an unknown degree, however none are
expected to exceed the level that would require three
generations to recover (the threshold for a significant
effect).
After this lengthy discussion on concerns and gaps in the data,
the EA’s abrupt conclusion that any potential effects will be
insignificant is unsubstantiated. This is the type of “conclu-
sory assertion” that is disfavored by this court because the
agency has not provided any scientific data that justifies this
position. See Ocean Advocates, 402 F.3d at 864.
The EA notes that it does not have the data to examine the
full effect of underwater noise on fish movement. When infor-
mation necessary to determine the effects is readily available
or easily gathered, the law requires that an agency gather such
15582 ALASKA WILDERNESS v. KEMPTHORNE
information. See Nat’l Parks & Conservation Ass’n, 241 F.3d
at 733 (stating agency’s “lack of knowledge does not excuse
the preparation of an EIS; rather it requires the [agency] to do
the necessary work to obtain it.”). Here, MMS has not shown
that this information is unattainable. If data on the impacts of
fish is not readily available, then the agency must give a more
complete explanation of how, in light of those gaps, it still
believes this project would not cause a significant impact on
fish and the communities that consume them.
The EA ultimately concludes that Inupiat communities may
suffer cultural consequences from drilling activities, but does
not state whether these effects will be “significant.” Instead,
the EA relies on mitigation measures in the hopes that they
would ameliorate any harm done: “Required mitigation, mon-
itoring, and conflict avoidance measures . . . would serve col-
lectively to mitigate disturbance effects on Native lifestyles
and subsistence practices and likely would mitigate any con-
sequent impacts on sociocultural systems.” As discussed
above, these mitigation measures do not go far enough to rec-
tify the potential that Shell’s project will cause substantial
harm to Inupiat communities on Alaska’s northern shore.
[17] In sum, MMS failed to take a “hard look” at the
impacts this plan will have on Inupiat subsistence activities.
The agency notes the gaps in its data and the potential for
serious consequences, but then comes to the unsubstantiated
conclusion that any impacts will be insignificant. The agen-
cy’s broad assertions are not supported by the record. See
EPIC, 451 F.3d at 1009 (agency must consider all relevant
factors and provide a convincing statement of reasons to jus-
tify its decision). Accordingly, MMS should create either a
revised environmental analysis or, as necessary, an environ-
mental impact statement, taking a closer look at how Shell’s
drilling in these specific sites will affect Inupiat subsistence
activities.
ALASKA WILDERNESS v. KEMPTHORNE 15583
3. Impacts of Potential Crude Oil Spills
[18] Despite any other insufficiencies, MMS’s environmen-
tal analysis does adequately examine the impacts of a poten-
tial crude oil spill. The EA states, “[f]or purposes of this EA
analysis, no crude oil spills are assumed from exploration
activities. This assumption is based on the low rate of explor-
atory drilling blowouts per well drilled and the history of
exploration spills on the Arctic OCS . . . .” Petitioners contend
that this assumption is erroneous, and the agency must con-
sider the likelihood of a spill in relationship to the harm such
an event would cause. This argument is unavailing. The agen-
cy’s assessment makes the proper inquiry into the risk of an
oil spill, and no further analysis is required in relationship to
this exploration plan.
In the process of NEPA review, an agency should consider
the “degree to which the possible effects on the human envi-
ronment are highly uncertain or involve unique or unknown
risks.” 40 C.F.R. § 1508.27(b)(5). NEPA does not require
consideration of risks that are “merely speculative” or “infini-
tesimal.” No GWEN Alliance v. Aldridge, 855 F.2d 1380,
1386 (9th Cir. 1988); Ground Zero Ctr. for Non-Violent
Action v. U.S. Dep’t of the Navy, 383 F.3d 1082, 1090 (9th
Cir. 2004). An agency should assess the likelihood of a partic-
ular risk along with the consequences of such an accident. See
City of New York v. U.S. Dep’t of Transp., 715 F.2d 732, 746
(9th Cir. 1983) (“It is only the risk of accident that might ren-
der the proposed action environmentally significant. That cir-
cumstance obliges the agency to undertake risk assessment:
an estimate of both the consequences that might occur and the
probability of their occurrence.”).
Despite its initial assumption that an oil spill will not occur,
the EA includes discussion of the effects of a potential spill
on the Inupiat subsistence harvest and a variety of animal spe-
cies. The EA also incorporates the multi-sale EIS’s extensive
discussion of a potential spill. The multi-sale EIS recognizes
15584 ALASKA WILDERNESS v. KEMPTHORNE
that “[a] very large oil spill is an issue of concern to everyone.
. . . A very large oil spill is a low-probability event with the
potential for very high effects.” The EIS analyzes data from
spills around the world, since very large spills in U.S. waters
have been extremely rare. The document further considers the
potential effects of “small” and “large” oil spills in the Beau-
fort Sea region. Appended to the multi-sale EIS is a lengthy
document entitled “The Information, Models and Assump-
tions We Use to Analyze the Effects of Oil Spills in this EIS.”
This report includes information on the history and behavior
of spilled oil. In evaluating the risks of an oil spill, the agency
has, over time, conducted extensive studies on the likelihood
of oil spills in the Beaufort Sea. These include the 2002 and
2006 Bercha Reports on the “Alternative Oil Spill Occurrence
Estimators and their Variability for the Beaufort and Chukchi
Seas.” The analysis of oil spill risks was updated in the EAs
for both Lease Sale 195 and Lease Sale 202. There is no indi-
cation that the agency erred in relying on these documents in
its review of this specific project.
Petitioners argue that extensive discussion of spills in
MMS’s prior analyses and the requirement that an oil
response plan be prepared is evidence that an oil spill is a rea-
sonably foreseeable event. Under their logic, the EA should
therefore have included analysis on the possibility of such a
spill. Petitioners support this contention by citing to cases
where an agency was required to consider even remote risks
that could cause great harm. See, e.g., San Luis Obispo Moth-
ers for Peace v. Nuclear Regulatory Comm’n, 449 F.3d 1016,
1030-31 (9th Cir. 2006) (holding that agency was unreason-
able in categorically dismissing the possibility of a terrorist
attack as “too remote and highly speculative” to warrant
NEPA consideration). Petitioners also point out that, even if
an oil spill is unlikely, the consequences could be great. Peti-
tioners contend that the EA’s blanket “assumption” failed to
adequately consider the relationship between the risk and the
consequences of an oil spill.
ALASKA WILDERNESS v. KEMPTHORNE 15585
Petitioners’ position on this issue is flawed. The EA prop-
erly tiers to the lengthy discussion of the risk and impacts of
oil spills in the multi-sale EIS. This case may be distinguished
from San Luis Obispo Mothers for Peace because here, the
agency does not claim it has no obligation to consider this
risk, but only that it has sufficiently done so in previous
studies. There is no evidence that anything about this particu-
lar project requires separate analysis on oil spills. No special
risk creates the need for additional evaluation of factors that
were not already considered in MMS’s prior studies.
Although the language in the EA may not have been ideal,
MMS’s “assumption” that there would not be an oil spill was
supplemented with comprehensive studies on the likelihood
and impact of such an event. Accordingly, the agency did not
act arbitrarily and capriciously in its assessment of the poten-
tial effects of an oil spill from this project.
C. Necessity of a Revised EA or an EIS
MMS has violated NEPA by failing to take a “hard look”
at the impacts of Shell’s proposal on bowhead whales and
Inupiat subsistence activities. MMS has not provided a con-
vincing statement of reasons to justify its decision not to com-
plete an EIS. See Blue Mountains, 161 F.3d at 1211.
Moreover, several of the regulatory significance criteria are
triggered here. See 40 C.F.R. § 1508.27; Sierra Club v. U.S.
Forest Serv., 843 F.2d 1190, 1193 (9th Cir. 1988) (holding
that an agency’s decision not to prepare an EIS was “unrea-
sonable” because record demonstrated that four of the regula-
tory factors were implicated). Shell’s project is located in an
increasingly fragile ecosystem and near the Arctic National
Wildlife Refuge, an “ecologically critical area” under 40
C.F.R. § 1508.27(b)(3). The contentious nature of the agen-
cy’s internal communication during the review process dem-
onstrates the controversy surrounding the project. See id.§ 1508.27(b)(4); see also Native Ecosystems Council, 428
15586 ALASKA WILDERNESS v. KEMPTHORNE
F.3d at 1240 (noting that a project is highly controversial if
there is a substantial dispute about the effect of an action). As
discussed above, the impact of activities at these particular
sites poses an unknown risk to bowhead whales and Inupiat
subsistence activities. See id. § 1508.27(5). The project could
also have a serious effect on an endangered species: bowhead
whales. See id. § 1508.27(b)(9). Finally, there is the potential
for cumulatively significant impacts as the project continues
through exploration and into the production phase, and the
region continues to develop. See id. § 1508.27(b)(7).
[19] In light of the potential for serious impacts on bow-
head whales and Inupiat subsistence activities, the agency
erred by not undertaking a more careful analysis before issu-
ing a FONSI. Due to the inadequacies in this particular EA,
there is uncertainty over whether the proposed project may
have a significant impact. Accordingly we remand to the
agency to either prepare a revised EA or, as necessary, an
EIS.
The statutory scheme does not preclude a finding that an
EIS may be appropriate in these circumstances. MMS argues
that the strict timelines in OCSLA indicate that an EIS is not
a feasible option at the exploration stage. The agency only has
thirty days to approve or disapprove of an exploration plan.
43 U.S.C. § 1340(c)(1). Respondents argue that thirty days is
not enough time to generate a full EIS. However, in passing
OCSLA, Congress specifically provided that it did not alter an
agency’s obligations under NEPA. See 43 U.S.C. § 1866(a);
see also 30 C.F.R. § 250.232(c) (“The [agency] will evaluate
the environmental impacts of the activities described in your
proposed EP and prepare environmental documentation under
[NEPA].”). This court has recognized that “NEPA may
require an environmental impact statement at each stage: leas-
ing, exploration, and production and development.” Vill. of
False Pass v. Clark, 733 F.2d at 614.
The agency may be correct that it is difficult for an agency
to conduct a full EIS in only thirty days, but its argument that
ALASKA WILDERNESS v. KEMPTHORNE 15587
OCSLA precludes such a result is unconvincing. There is
flexibility built into the regulatory scheme so that the agency
can perform its full duties under NEPA. The thirty-day clock
begins to run only when an exploration plan is deemed com-
plete. 30 C.F.R. § 250.233(a). If the agency is able to identify
gaps before that point, then it can request that information be
added before the proposal is finalized. See 30 C.F.R.
§ 250.231(b). Additionally, at the end of the thirty-day review
period, the agency may opt to require modifications to an EP
if there are concerns that it does not comport with environ-
mental standards. 30 C.F.R. § 250.233(b). These options give
the agency additional time to consider a plan and compile an
environmental impact statement, if necessary. To say simply
that the agency only has thirty days to complete a full EIS is
misleading. Here, since the agency’s decision to issue a
FONSI without considering the environmental impacts to
bowhead whales and subsistence resources was in error,
MMS should prepare either a more thorough environmental
analysis or an EIS, as necessary, examining the consequences
of drilling at these specific locations. See Metcalf v. Daley,
214 F.3d 1135, 1146 (9th Cir. 2000).
III. MMS’s Compliance With OCSLA
[20] The agency’s approval of this project also violated
OCSLA. OCSLA’s implementing regulations require that,
when evaluating exploration plans, an agency should consider
information about “proposed well location and spacing.” 30
C.F.R. § 250.203. Exploration plans must be “project specif-
ic” and describe the “resources, conditions, and activities”
that could be affected. 30 C.F.R. § 250.227. In particular, an
EP must include “[a] map showing the surface location and
water depth of each proposed well and the locations of all
associated drilling unit anchors.” 30 C.F.R. § 250.211(b).
Shell submitted the locations of the 2007 drilling sites, but did
not specify where it wished to drill in 2008 and 2009. Shell
noted that future drilling locations will depend on what is
found in the first Sivulliq exploration. Without specific infor-
15588 ALASKA WILDERNESS v. KEMPTHORNE
mation about future well locations, the agency cannot meet its
obligation to “review and approve proposed well location and
spacing” in accord with 30 C.F.R. § 250.203. As a result, the
agency erred by approving an EP for 2007-2009 without
knowing where Shell would be drilling for the last two years.
The agency is not saved by regulations that allow MMS to
consider the impacts of drilling at subsequent locations when
the company requests permits for those specific sites. See 30
C.F.R. §§ 250.410-250.418. These regulations stipulate that to
obtain approval for a well, the applicant must have
“[i]nclude[d] the well in [its] approved Exploration Plan.” 30
C.F.R. § 250.410(b). The wells for 2008 and 2009 were not
included in Shell’s EP. The permit regulations are not an ade-
quate mechanism enabling the agency to check Shell’s actions
at a later date. MMS also points to 30 C.F.R. § 250.201(c),
which enables the agency to relax certain informational
requirements when:
(1) Sufficient applicable information or analysis is
readily available to MMS;
(2) Other coastal or marine resources are not present
or affected;
(3) Other factors such as technological advances
affect information needs; or
(4) Information is not necessary or required for a
State to determine consistency with their CZMA
Plan.
It is not clear how any of these sections would apply here. To
the contrary, having specific information about well locations
is critical to the agency’s ability to analyze the project’s envi-
ronmental effects. MMS acted in contravention of the regula-
tions by approving Shell’s three-year plan without
determining the locations of the wells that would be drilled in
ALASKA WILDERNESS v. KEMPTHORNE 15589
that period. In order to comply with the regulations, the
agency needs to consider the location of the proposed wells
before it can approve the project for all three years.
CONCLUSION
[21] For the foregoing reasons, we VACATE the agency’s
approval of Shell’s exploration plan and REMAND for the
agency to prepare a revised EA or, as necessary, an EIS.
Shell’s motion to lift the stay is DENIED as moot.
VACATED AND REMANDED.
BEA, Circuit Judge, dissenting:
I respectfully dissent on two grounds. First, North Slope
Borough and the Alaska Eskimo Whaling Commission
(“NSB”) and Resisting Environmental Destruction on Indige-
nous Lands (“REDOIL”) filed their petitions for review after
the time allowed by the applicable statute of limitations, and
neither Congress nor this court provide NSB or REDOIL with
an exception to the requirement of timely filing.
Second, because the Minerals Management Service’s
(“MMS”) approval of Shell’s exploration plan was neither
arbitrary nor capricious, we have no power to overturn the
agency action, and the majority’s efforts to do so contravene
our recent en banc decision in The Lands Council v. McNair,
537 F.3d 981 (9th Cir. 2008).
Jurisdiction
We do not have jurisdiction over NSB and REDOIL’s peti-
tions for review because the petitions were filed in this court
more than 60 days after the agency action here on review:
MMS’s approval of Shell Offshore, Inc.’s (“Shell”) explora-
15590 ALASKA WILDERNESS v. KEMPTHORNE
tion plan. In their petitions for review, NSB and REDOIL
contend MMS failed to consider how Shell’s exploration plan
would harm some Inupiat subsistence activities: to wit, the
Inupiat practice of bowhead whale hunting. We lack jurisdic-
tion over these petitions because it took NSB and REDOIL 96
days to file the petitions they were required by statute to file
within 60 days.
At all times relevant here, the Outer Continental Shelf
Lands Act (“OCSLA”), 43 U.S.C. § 1331 et seq., provided:
Any action of the Secretary specified in paragraph
(1) or (2) shall only be subject to review pursuant to
the provisions of this subsection . . . .
43 U.S.C. § 1349(c)(4) (emphases added). “This subsection”
by which “[a]ny action of the Secretary” may only be
reviewed is 43 U.S.C. § 1349(c).
43 U.S.C. § 1349(c)(2) makes clear the statute applies to
“[a]ny action of the Secretary1 to approve . . . any exploration
plan . . . .” and that such actions “shall be subject to judicial
review only in a United States court of appeals for a circuit
in which an affected State is located.” Id. (emphases added).
Thus, review under 43 U.S.C. § 1349(c) must be “judicial” in
nature, because “any action” by the Secretary to approve an
exploration plan “shall only” be subject to review pursuant to
the mechanisms described in the provisions of 43 U.S.C.
§ 1349(c)—and those mechanisms are only judicial.2
1
MMS has the authority to approve exploration plans on behalf of the
Secretary of the Interior. See 30 C.F.R. § 256.
2
Contrary to the majority’s assertion, 43 U.S.C. § 1349(c) does not
mention or even raise the possibility of administrative review. We should
not read such review into the statute, particularly when, as here, the statute
includes opposing provisions. See Silvers v. Sony Pictures Ent., Inc., 402
F.3d 881, 885 (9th Cir. 2005) (en banc) (“The doctrine of expressio unius
est exclusio alterius ‘as applied to statutory interpretation creates a pre-
ALASKA WILDERNESS v. KEMPTHORNE 15591
Subsection 1349(c)(3) provides that “judicial review . . .
shall be available only to a person who . . . files a petition for
review of the Secretary’s action within sixty days after the
date of such action. . . .” Accordingly, an MMS order approv-
ing an exploration plan, as here, is reviewable “only” in a
court of appeals and “only” when the petition for review is
filed within 60 days. MMS approved Shell’s exploration plan
on February 15, 2007. The last day to petition for review of
the MMS decision was April 16, 2007, 60 days later. NSB
and REDOIL filed their petitions for review in this court on
May 22, 2007, and May 25, 2007, respectively.
The majority ignores the plain text of the statute, and
instead relies on the fact that on April 13, 2007, before filing
their petitions for review in this court, NSB and REDOIL
chose to file a purported administrative appeal with the Inte-
rior Board of Land Appeals (“IBLA”) of MMS’s approval
order—a filing that is not authorized by the relevant statute,
43 U.S.C. § 1349. They purported to do so pursuant to 30
C.F.R. § 290.2.3 On May 4, 2007, IBLA “suspended” pro-
sumption that when a statute designates certain persons, things, or man-
ners of operation, all omissions should be understood as exclusions.’ ”).
Thus, mention of “judicial review” must be interpreted as the only review
allowed by statute. To allow administrative review is plainly to amend the
statute by judicial writ.
3
30 C.F.R. § 290.2 provides: “If you are adversely affected by a[n]
[MMS] official’s final decision or order issued under” the relevant MMS
regulations, “you may appeal that decision or order to the Interior Board
of Land Appeals.” MMS sought dismissal of NSB’s and REDOIL’s IBLA
administrative appeals because federal courts of appeals have exclusive
jurisdiction to review the approval of an exploration plan under OCSLA.
The majority states that “the IBLA declined to exercise its jurisdiction and
stayed the administrative proceedings pending the outcome of” the instant
petition for review. Op. at 15560. Actually, the IBLA’s order is unclear:
the IBLA stated it would have no jurisdiction to hear this matter once the
administrative record was filed in this court, but also stated the IBLA
would immediately “suspend proceedings . . . pending the outcome of” the
instant petition for review. Importantly, the IBLA did not decide it had
15592 ALASKA WILDERNESS v. KEMPTHORNE
ceedings on the administrative appeal pending the outcome of
the instant petition for review.
The majority holds the statutory 60-day filing period was
“tolled” during NSB and REDOIL’s unauthorized administra-
tive appeal. Accordingly, the majority holds NSB and
REDOIL’s May 15 and May 22 petitions in this court were
timely. The majority holds IBLA’s suspension of the adminis-
trative appeal pending the outcome of the instant action is a
reviewable final agency order and, thus, the 60-day period for
NSB and REDOIL to file their petitions for review of MMS’s
order approving the exploration plan began when IBLA sus-
pended the unauthorized administrative appeal.
The majority’s use of the word “tolling” here is inventive.
The “tolling” the majority applies is different from any known
concept of tolling by appeal or equitable tolling, which is per-
haps why, as discussed below, the majority cites only inappo-
site cases. Here, the question is not whether the time to file
for review of MMS’s approval of Shell’s exploration plan was
jurisdiction, but prudentially or otherwise decide not to exercise any such
jurisdiction. Rather than determine it had jurisdiction, it observed it would
have no jurisdiction upon filing of the record. Note: the IBLA did not say
it would lose any jurisdiction it might have had. Indeed, it declined to rule
one way or the other on the motion challenging its jurisdiction. This is a
far cry from “the IBLA declined to exercise its jurisdiction”: the only
action the IBLA took was to take the motions to dismiss and to stay
“under advisement.”
The only way to interpret the IBLA order, based on its actions as well
as its words regarding the motions to dismiss and to stay, is that the IBLA
understood it would lose any jurisdiction it had once the appeal was per-
fected by the filing of the administrative record in this court, and anticipat-
ing such filing, stayed proceedings pending the outcome of the instant
petition for review. The IBLA was in error. The IBLA never had jurisdic-
tion over this matter in the first place, and thus had no valid administrative
appeal to stay, because § 1349 provides the courts of appeals with “exclu-
sive” jurisdiction to hear petitions for review of MMS’s approval of an
exploration plan.
ALASKA WILDERNESS v. KEMPTHORNE 15593
extended by the administrative appeal. Rather, the question is
whether the filing of an administrative appeal with IBLA sud-
denly rendered MMS’s approval of the exploration plan,
which constitutes a final appealable order, non-final—and,
therefore, whether IBLA’s later suspension of the administra-
tive appeal was itself a “final agency action” that restarted the
60-day filing clock. See United States v. Ibarra, 502 U.S. 1,
4 n.2 (1991) (“[T]he issue is better described as whether the
[60]-day period began to run on the date of the first order or
on the date of the order denying the motion for reconsidera-
tion, rather than as a matter of tolling. Principles of equitable
tolling usually dictate that when a time bar has been sus-
pended and then begins to run again upon a later event, the
time remaining on the clock is calculated by subtracting from
the full limitations period whatever time ran before the clock
was stopped.”).
Contrary to the majority’s assertion, IBLA’s suspension of
proceedings cannot constitute a “final agency action” because
a suspension of proceedings pending the outcome of collateral
proceedings is, by definition, not final.4 See Bennett v. Spear,
520 U.S. 154, 177-78 (1997) (“As a general matter, two con-
ditions must be satisfied for agency action to be ‘final’: First,
the action must mark the ‘consummation’ of the agency’s
decisionmaking process—it must not be of a merely tentative
or interlocutory nature. And second, the action must be one by
which ‘rights or obligations have been determined,’ or from
which ‘legal consequences will flow.’ ”). Nothing is more
interlocutory than a suspension of proceedings—whether in
review of an agency action or a divorce decree. Thus, the only
4
Indeed, how can the suspension of an appeal at the agency level be a
reviewable final agency action? If we determine the suspension was within
the agency’s discretion, it can be indefinite and there will never be an deci-
sion! Here, for instance, if no administrative record were filed, the suspen-
sion of the appeal would be indefinite. Even a decision by the circuit court
would not fulfill the regulation’s requirement of filing an administrative
record to oust agency jurisdiction.
15594 ALASKA WILDERNESS v. KEMPTHORNE
“final” agency action here was MMS’s approval of the explo-
ration plan.5
Further, the majority’s “tolling” theory is inapplicable as a
matter of law because, although the Department of the Interior
provides a general scheme for administrative appeals of MMS
decisions pursuant to 30 C.F.R. § 290.2 (the regulation on
which NSB and REDOIL erroneously relied when filing their
unauthorized administrative appeal), Congress expressly
restricted the availability of review for MMS’s approval of an
exploration plan to the court of appeals. See 43 U.S.C. § 1349(“Any action of the Secretary to approve . . . any exploration
plan . . . under this subchapter shall be subject to judicial
review only in a United States court of appeals . . . .”)
(emphasis added). Thus, there is no statutory administrative
review process during which a court may stay the running of
OCSLA’s limitations period. NSB and REDOIL simply filed
administrative appeals under general agency regulations, and
those appeals clashed with a specific statutory prohibition of
an appeal other than to a United States Court of Appeals. It
should be that simple: the specific congressional statute
trumps the general agency regulation. See Chevron USA, Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43
(1984) (“If the intent of Congress is clear, that is the end of
the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress.”).
Even if “tolling” somehow were to apply, under any recog-
nized tolling theory the statute of limitations would have
begun to toll on April 13, 2007, when NSB and REDOIL filed
their administrative appeals. On April 13, 2007, only three
days remained in the 60-day statutory filing period. Thus,
when IBLA suspended NSB and REDOIL’s unauthorized
5
The petitioners are not misled. Their opening briefs are clear they peti-
tion for review of MMS’s approval of the exploration plan, and not
IBLA’s suspension of their administrative appeal. See Opening Br. of
AWL and REDOIL at 1; Opening Br. of NSB at 4-5.*
ALASKA WILDERNESS v. KEMPTHORNE 15595
administrative appeal on May 4, 2007, NSB and REDOIL
would have had three days in which to file timely petitions for
review in this court (by May 7, 2007). Their petitions were
not filed until May 22, 2007 (REDOIL) and May 25, 2007
(NSB). Thus, the petitions were filed late, even if one accepts
the majority’s creative “tolling” theory.
To support its tolling theory, the majority opinion relies on
cases interpreting the Hobbs Act, 28 U.S.C. §§ 2341-51, to
hold the tolling rule applicable under that statutory scheme
also applies here. Cases based on the Hobbs Act, however—
including the primary case cited by the majority, ICC v.
Brotherhood of Locomotive Engineers, 482 U.S. 270 (1987)
—are inapposite because: (1) the Hobbs Act simply does not
apply to decisions of the Secretary of the Interior, whose
authority is delegated to MMS, and (2) the rationale behind
Hobbs Act tolling does not apply to a situation like this one.6
1. The Hobbs Act does not apply to actions by
MMS or the Secretary of the Interior.
Any tolling rule derived from an interpretation of the
Hobbs Act is off base because the Hobbs Act does not apply
to MMS. The Hobbs Act states “[t]he court of appeals (other
than the United States Court of Appeals for the Federal Cir-
cuit) has exclusive jurisdiction to enjoin, set aside, suspend
6
I note Brotherhood of Locomotive Engineers is inapposite for the addi-
tional reason that, in Brotherhood of Locomotive Engineers, there was no
question the administrative review board had authority to take the admin-
istrative appeal. See 482 U.S. at 276. The situation here, as discussed, is
quite the contrary: the IBLA had no authority whatsoever to take an
administrative appeal of an MMS exploration plan.
The majority also cites Acura of Bellevue v. Reich, 90 F.3d 1403 (9th
Cir. 1996) in support of its “tolling” theory. Unlike Brotherhood of Loco-
motive Engineers, Acura is not a Hobbs Act case. However, Acura is inap-
posite because it did not involve a specific statutory provision, as here,
that provides the courts of appeals with exclusive jurisdiction to hear peti-
tions for review.
15596 ALASKA WILDERNESS v. KEMPTHORNE
(in whole or in part), or to determine the validity of” final
orders from certain specific agencies—but not those within
Department of the Interior, including MMS. On its face, the
Hobbs Act applies only to final orders of: (1) the Federal
Communications Commission; (2) the Secretary of Agricul-
ture; (3) the Secretary of Transportation; (4) the Federal Mari-
time Commission; (5) the Atomic Energy Commission; and
(6) the Surface Transportation Board, and also (7) orders
under section 812 of the Fair Housing Act. 28 U.S.C. § 2342.
In some instances, an agency’s organic statutes may refer to
the Hobbs Act as the appropriate statute for obtaining judicial
review. See, e.g., 8 U.S.C. § 1252(a)(1) (providing for judicial
review of final orders of removal of aliens under the Hobbs
Act). OCSLA, however, is not such a statute. Instead, OCSLA
contains its own provisions for exclusive judicial review by
the courts of appeals. Thus, a judicially-created tolling rule
under the Hobbs Act does not apply to agency action taken by
the Secretary of the Interior or MMS under OCSLA.
Here, NSB and REDOIL simply may not have read
OCSLA, 43 U.S.C. § 1331 et seq., and filed an administrative
appeal under a law that provides for review only by this court.
Now they want a free pass. We should not give it to them:
“As the saying goes, ‘rules is rules.’ ” Nat’l Sci. and Tech.
Network, Inc. v. FCC, 397 F.3d 1013, 1014-15 (D.C. Cir.
2005).
2. The justifications for Hobbs Act “tolling”
do not apply here.
Even were the Hobbs Act applicable to MMS’s final order,
the underlying rationale for staying the running of the limita-
tions period under the Hobbs Act does not apply to MMS
approval of exploration plans under OCSLA. In the Hobbs
Act cases, the agencies the court reviewed possessed statutory
authority to conduct administrative reviews of their orders
after the filing of a petition for rehearing or reconsideration
with the agency. See, e.g., 49 U.S.C. § 722(c) (granting
ALASKA WILDERNESS v. KEMPTHORNE 15597
administrative powers to review orders of the Department of
Transportation); 46 U.S.C. § 304(b) (Federal Maritime Com-
mission); 42 U.S.C. § 2239(b) (Atomic Energy Commission).
Hence, in those cases, including those cited by the majority,
it was consistent with Congress’s stated intent to stay the limi-
tations period for judicial review of actions by those agencies
because Congress gave those agencies statutory power and
authority to review their own actions before another court did.
In contrast, OCSLA and the organic statutes for the Depart-
ment of the Interior do not provide for Interior or other
agency administrative review of MMS decisions. The statu-
tory scheme provides the Secretary of the Interior only with
the general authority to “prescribe such rules and regulations
as may be necessary to carry out” OCSLA, 43 U.S.C. § 1334,
but not to review an MMS order approving an exploration
plan. Indeed, as discussed above, the OCSLA provision gov-
erning the approval of exploration plans expressly limits
review to a petition to the courts of appeal.
Thus, we lack a statutory basis on which to allow tolling for
an administrative appeal in the OCSLA context. Further, toll-
ing here violates the clear intent of Congress that the Secre-
tary “shall approve” exploration plans within 30 days. The
majority’s holding that action on exploration plans may be
administratively appealed to the IBLA and, thus—probably,
almost always—decided over a period of time longer than 30
days, defeats Congress’s express desire for rapid approval or
denial of exploration plans.7 The justifications for Hobbs Act
tolling simply do not apply to review of an exploration plan
approval under OCSLA.
7
Congress stated its intent for OCSLA included “expedited exploration
and development of the Outer Continental Shelf” and to “insure that the
extent of oil and natural gas resources of the Outer Continental Shelf is
assessed at the earliest practicable time.” 43 U.S.C. § 1802(1), (9)
(emphases added).
15598 ALASKA WILDERNESS v. KEMPTHORNE
Finally, the Supreme Court has made clear that statutorily
imposed times to file a notice of appeal (and, by extension, a
petition for review) are jurisdictional and are not subject to
equitable exceptions. See Bowles v. Russell, 127 S.Ct. 2360(2007).8 The majority does not claim there are grounds for
equitable exceptions to the 60-day rule. Here, as discussed,
we lack any statutory basis for “tolling.” Therefore, because
OCSLA provides exclusive jurisdiction for review of MMS
approval of exploration plans to the courts of appeals, because
the Hobbs Act does not apply to petitions for review under
OCSLA, and because the justifications for Hobbs Act tolling
are not present in the context of this case, we do not have
jurisdiction over NSB and REDOIL’s untimely petitions.
Our lack of jurisdiction over NSB and REDOIL’s untimely
petitions narrows the scope of our review because it elimi-
nates from our consideration those issues that were not raised
in the timely filed petition of the Alaska Wilderness League,
the National Resources Defense Council, and the Pacific
Environment (collectively “AWL”). Specifically, we lack
jurisdiction over claims that MMS failed to take a “hard look”
at the potential impact of Shell’s exploration plan on Inupiat
subsistence hunting, as AWL did not raise this contention.
We still must determine whether, as AWL did contend,
MMS failed to take a “hard look” at the impact of Shell’s
exploration plan on bowhead whales.
8
“Because Congress decides whether federal courts can hear cases at all,
it can also determine when, and under what conditions, federal courts can
hear them. . . . Bowles’ failure to file his notice of appeal in accordance
with the statute therefore deprived the Court of Appeals of jurisdiction. . . .
Today we make clear that the timely filing of a notice of appeal in a civil
case is a jurisdictional requirement. . . . [T]his Court has no authority to
create equitable exceptions to jurisdictional requirements . . . .” Bowles,
127 S.Ct. at 2365-66.
ALASKA WILDERNESS v. KEMPTHORNE 15599
Merits
Under OCSLA, the Secretary of the Interior and, by delega-
tion, MMS, are charged with ensuring the “vital national
resource reserve” of the Outer Continental Shelf “be made
available for expeditious and orderly development, subject to
environmental safeguards.” 43 U.S.C. § 1332(3). Under the
National Environmental Policy Act (“NEPA”), 42 U.S.C.
§ 4321 et seq., the agency must utilize a staged decision-
making process that conducts environmental review at each
stage of a proposed action’s OCSLA review. See 40 C.F.R.
§ 1502.20.
This case comes to us at stage three of NEPA analysis.9 At
this stage, OCSLA requires—prior to lessee Shell commenc-
ing exploration of potential oil or natural gas deposits—that
such lessee must “submit an exploration plan to the Secretary
for approval.” 43 U.S.C. § 1340(c)(1). If the Secretary finds
the plan is consistent with OCSLA, OCSLA regulations, and
the provisions of the lease, the exploration plan “shall be
approved” within 30 days of submission. Id.As the majority correctly observes, MMS prepared an ini-
tial, 1500-page Environmental Impact Statement that dis-
cussed potential environmental effects from development of
each of Shell’s lease-sale sites (“multi-sale EIS”). MMS then
prepared a supplemental, near-100-page Environmental
Assessment (“EA”) that supplemented the multi-sale EIS for
two of Shell’s lease plots about which MMS decided addi-
tional information was needed. In agency parlance, this sup-
plementing process is called “tiering.” “Tiering” means the
9
Stage one is preparation of a lease schedule, stage two is drafting the
lease itself, and stage four is development of the lease property. See Tribal
Village of Akutan v. Hodel, 869 F.2d 1185, 1186 (9th Cir. 1988) (explain-
ing the four stages of NEPA analysis before deferring to the judgment of
the Secretary of the Interior as to the adequacy of the environmental
studies at issue). The instant petitions for review address stage three alone.
15600 ALASKA WILDERNESS v. KEMPTHORNE
agency bases its later analyses on its initial comprehensive
analysis, instead of preparing another 1500 page EIS. Peti-
tioners and the majority do not want MMS to use its extensive
prior work to inform its decisions on individual leases, but to
prepare a new, self-contained EIS10 for each lease Shell pro-
poses to explore. This is worse than re-inventing the wheel:
this is re-inventing the wheel for each wheel of the car.
The process will be expensive, time-consuming, and
largely duplicative, which is precisely why NEPA’s imple-
menting regulations encourage “tiering” of NEPA documents
—to “eliminate repetitive discussion of the same issues and to
focus on the actual issues ripe for decision at each level of
environmental review.” 40 C.F.R. § 1502.20 (“Whenever a
broad environmental impact statement has been prepared . . .
the subsequent statement or environmental assessment need
only summarize the issues discussed in the broader statement
. . . .”). The agency’s use of tiering allows it to fulfill its
NEPA obligations while complying with the strict 30-day
turnaround time OCSLA requires. See 43 U.S.C.
§ 1340(c)(1). Here, following its tiered analysis, MMS issued
a “Finding of No Significant Impact” (“FONSI”), which is the
agency’s determination that the existing analyses are suffi-
cient and a new, start-from-scratch EIS (or “revised” EA) is
unnecessary. See 40 C.F.R. § 1508.9(a)(1).
The majority concludes MMS failed to include a suffi-
ciently detailed analysis of the biological effects of Shell’s
exploration plan on bowhead whales, and that its order
approving the plan was therefore arbitrary and capricious. The
majority holds the agency should have prepared a new, self-
10
The majority alternatively permits the agency to prepare a “revised”
EA instead of a wholly new EIS. However, the majority does not explain
how or whether its demand for a “revised” EA is analytically distinguish-
able from its demand for a new EIS. Further, whether the majority requires
MMS to prepare a new EIS or a “revised” EA does not change the fact
the agency gave the exploration plan a sufficiently “hard look” and so did
not abuse its discretion by approving the exploration plan.
ALASKA WILDERNESS v. KEMPTHORNE 15601
contained EIS (or “revised” EA) in response to Shell’s explo-
ration plan, rather than the two-lease EA it prepared, which
tiered to the multi-sale EIS.
MMS conducted a thorough review to determine whether
its two-lease EA was sufficient fully to analyze Shell’s explo-
ration plan. Pursuant to regulations, MMS considered the
“significance” of Shell’s proposal in terms of “context” and
“intensity.” See 40 C.F.R. § 1508.27. This means the agency
considered, in relevant part: (1) whether, after a “hard look,”
Shell’s exploration plan was likely to impact bowhead whales
in a significant manner; (2) whether the likely consequences
of the drilling plan were “highly controversial”; (3) whether
the agency’s identification of “cumulatively significant
impacts” on bowhead whales required a separate EIS or dif-
ferent EA; and (4) whether Shell needed to identify the pre-
cise locations of each well it planned to drill. The majority
holds each of these considerations requires the agency to pro-
duce a supplemental EIS or “revised” EA, and reverses the
agency’s order. For the reasons discussed below, with respect,
the majority is in error. We should deny the petition.
1. MMS gave the potential effects of Shell’s exploration
plan on bowhead whales a “hard look.”
The majority concludes MMS’s analysis of the effect on
bowhead whales of the proposed exploration plan was insuffi-
cient for the agency to approve the exploration plan without
requiring a new, separate EIS (or “revised” EA) for each lease
site because the agency did not give the plan a “hard look.”
We will find an agency gave an environmental issue a “hard
look” under NEPA if the agency puts forth a “ ‘convincing
statement of reasons’ that explain why the project will impact
the environment no more than insignificantly.” Ocean Advo-
cates v. United States Army Corps of Eng’rs, 402 F.3d 846,
864 (9th Cir. 2005). This “statement” may not be a mere con-
clusory assertion. Id.15602 ALASKA WILDERNESS v. KEMPTHORNE
The majority concludes the 1500-page multi-sale EIS and
100-page “tiered” EA it prepared were insufficient to consti-
tute a “hard look” because—says the majority, not the expert
agency—the EA and multi-sale EIS were too generalized to
consider adequately the impact of Shell’s planned activities
on bowhead whales. According to the majority, it was not
enough for the agency to analyze studies regarding the impact
of the type of noise Shell’s equipment would produce on bow-
head whales as they swim by; in the majority’s “expertise,”
the agency failed to analyze such vital additional noise-related
consequences of drilling as the noise of two drillships with
two icebreakers (versus the noise of two drillships with one
icebreaker), and the noise of cracking ice.
Sitting en banc, we recently held in a similar case that, con-
trary to the majority’s position, “it is not our proper role” to
“make fine-grained judgments” about the weight of specific
studies on which an environmental agency relies. The Lands
Council v. McNair, 537 F.3d 981, 993 (9th Cir. 2008). Rather,
“we are to be ‘most deferential’ when the agency is ‘making
predictions, within its area of special expertise, at the frontiers
of science.’ ” Id.In Lands Council, we affirmed a Forest Service plan to
regrow an old-growth forest area against a challenge that con-
tended the Forest Service failed to confirm its statistical mod-
eling with long term, on-the-ground observation. We
recognized that, “as non-scientists,” we need only ensure the
Forest Service analyzes the issue based on “studies that the
agency, in its expertise, deems reliable.” Id. at 994. In other
words, we do not “assess[ ] the quality and detail” of the
studies on which the agency relies. Id. at 993. Rather, “we . . .
conduct a ‘particularly deferential review’ of an ‘agency’s
predictive judgments about the areas that are within the agen-
cy’s field of discretion and expertise as long as they are rea-
sonable.’ ” Id. Our role is merely to ensure the agency has
not: (1) “relied on factors which Congress has not intended it
to consider,” (2) “entirely failed to consider an important
ALASKA WILDERNESS v. KEMPTHORNE 15603
aspect of the problem,” or (3) “offered an explanation for its
decision that runs counter to the evidence before the agency
or an explanation that is so implausible that it could not be
ascribed to a difference in view or the product of agency
expertise.” Id.None of these factors are present here. The documents
MMS utilized in its analysis were comprehensive. The 1500-
page multi-sale EIS contains a detailed analysis of icebreak-
ers’ potential effects on bowheads, and finds the effect of ice-
breaker noise on bowheads is likely to be “short-term” and
not disruptive of migration patterns. The multi-sale EIS also
contains a comprehensive 37-page analysis of all possible
impacts from drilling and other oil and gas related activities
on bowhead whales, reviewing studies on the biological sig-
nificance of noise as it related to bowheads. The EIS notes
“there has been no documented evidence that noise . . . would
serve as a barrier to migration.”
The EA, which was tiered to the multi-sale EIS, analyzed
the biological significance of exploratory drilling on whales,
with the advantage of knowledge of Shell’s specific plans. It
provided detailed information regarding the specific types of
drilling and ice-management vessels Shell plans to use and
how it intends to use them. All the studies to which they
referred considered responses of bowhead whales to the noise
from drillships along with noise from ice management ves-
sels. The EA discussed icebreaker noise, the effect on bow-
heads of noise from drilling and ice management, and the
National Marine Fisheries Service’s conclusion that explor-
atory drilling and associated activities would not jeopardize
bowhead whales, which it based in turn on an analysis of ice-
breaker and ice-management noise in addition to drilling
noise. In fact, the EA conducted a noise analysis specific to
the particular drilling vessels (the Kulluk and Frontier Discov-
erer) and the particular ice-breakers (the Kapitan Dranitzyn
and Vladimir Ignatyuk) Shell plans to use.
15604 ALASKA WILDERNESS v. KEMPTHORNE
The EA also requires Shell to measure and mitigate sound
levels in specific operating environments. Specifically, the
effects on bowhead whales will be carefully monitored
through methods including aerial surveys; if there is any indi-
cation bowheads are being displaced from important habitats,
the agency retains the authority to require Shell to modify its
operations to prevent the threat of serious, irreparable harm to
the whales.
If one substitutes the Forest Service’s sufficient statistical
modeling simulation in Lands Council for MMS’s purport-
edly insufficient simulation of noise effects here, and the
unnecessary on-the-ground observation by the Forest Service
in Lands Council for the purportedly necessary on-site noise
measurement here, one cannot help but conclude the panel
majority here is overruling Lands Council sub silentio.
The majority holds simulations of noise effects on bowhead
whales are not enough; the agency must actually go and mea-
sure the effect of noise on-site in an “uncontrolled setting.”
The EIS and EA studies that do exist, according to the major-
ity, are insufficient because they involve two drillships with
one icebreaker ship, and the situation here involves two ice-
breaker ships (nevermind the fact the agency analyzed the sta-
tistics for each of the two icebreaker ships Shell plans to use).
And the agency’s proposal to monitor the environmental
effects of Shell’s plan is not good enough; according to the
majority’s environmental “expertise,” the agency should have
mandated “alternative migration measures” or prepared a full
EIS (or “revised” EA). This is precisely the analysis Lands
Council rejected. See 537 F.3d at 1001 (“[T]o require [an
environmental agency] to affirmatively present every uncer-
tainty in an EIS would be an onerous requirement, given that
experts in every scientific field routinely disagree; such a
requirement might inadvertently prevent the [agency] from
acting due to the burden it would impose.”).
MMS gave a “hard look,” by any stretch of the term, to
whether Shell’s plans would disrupt the bowhead whale’s
ALASKA WILDERNESS v. KEMPTHORNE 15605
migratory habits. The expert agency to which Congress dele-
gated its authority concluded Shell’s plan would not disrupt
the bowhead whales to an extent necessary to require an addi-
tional costly EIS (or “revised” EA). The majority would
replace the “hard look” standard with one that requires the
agency to address every possible post-hoc consideration or
eventuality. This not what the statute demands—“[N]one of
NEPA’s statutory provisions or regulations requires [an envi-
ronmental agency] to affirmatively present every uncertainty
in its EIS,” id. at 1001—and such a rule would render impos-
sible Congress’s express requirement in OCSLA that the anal-
ysis be completed in 30 days. Thus, with respect, the
majority’s analysis is incorrect on this ground.
2. The potential effects identified in the multi-sale EIS and
EA are not “highly controversial.”
If a proposed exploration plan is “highly controversial,” a
new, site-specific EIS (or “revised” EA) may be required. 40
C.F.R. § 1508.27. The majority contends MMS erred by fail-
ing to prepare a site-specific EIS (or “revised” EA) due to
“[t]he contentious nature of the agency’s internal communica-
tion during the review process.” This is based on a handful of
complaints from a few agency scientists who opposed the
agency’s final determination.
A plan is “highly controversial,” and thus in need of a new
EIS (or “revised” EA), only if there is a “substantial dispute”
about the “size, nature, or effect” of the proposed act—and
not the mere “existence of opposition.” Native Ecosystems
Council v. United States Forest Serv., 428 F.3d 1233, 1240
(9th Cir. 2005) (emphasis added). Internal disagreement alone
is not enough to render an agency-approved plan “highly con-
troversial,” because “[w]hen specialists express conflicting
views, we defer to the informed discretion of the agency.”
Envtl. Prot. Info. Ctr. v. United States Forest Serv., 451 F.3d
1005, 1017 (9th Cir. 2006). As this court has explained,
“[s]imply because a challenger can cherry pick information
15606 ALASKA WILDERNESS v. KEMPTHORNE
and data out of the administrative record to support its posi-
tion does not mean that a project is highly controversial . . . .”
Native Ecosystems Council, 428 F.3d at 1240. “Not only
would such a standard deter candid disclosure of negative
information, it does not follow that the presence of some neg-
ative effects necessarily rises to the level of demonstrating a
significant effect on the environment.” Id.Thus, that qualified experts may disagree about the impor-
tance of certain data does not necessarily create a substantial
enough controversy to undermine the EIS or EA the agency
prepared. Otherwise, “any information included in an EA and
its supporting NEPA documents that admits impacts on wild-
life species and their habitat would trigger the preparation of
an EIS.”11 Id. Thus, this court has “decline[d] to interpret
NEPA as requiring the preparation of an EIS any time that a
federal agency discloses adverse impacts on wildlife species
or their habitat or acknowledges information favorable to a
party that would prefer a different outcome.” Id.Accordingly, the majority is incorrect that the agency’s
action was so “highly controversial” that preparation of an
EIS was required. Indeed, the fact that the agency considered
such dissenting views underscores what a “hard look” the pro-
posal was given. See id. at 1241 (“A ‘hard look’ should, of
course, involve the discussion of adverse impacts. A ‘hard
look’ does not dictate a soft touch or brush-off of negative
effects.”). However, “such information does not automatically
make the project ‘highly controversial’ . . . for the purposes
of determining whether” a new EIS (or “revised” EA) is nec-
essary. Id.On the contrary, neither the majority nor the parties identify
systemic failures in the agency’s analysis, or any potential
11
As discussed above, the majority has not analytically distinguished
between its demand MMS prepare a new EIS or a “revised” EA.
ALASKA WILDERNESS v. KEMPTHORNE 15607
effects it might avoid by the collection of more data. The
agency did not err.
3. There is no need for an EIS to analyze“cumulatively
significant impacts.”
The majority asserts a supplemental EIS (or “revised” EA)
was necessary because “there is the potential for cumulatively
significant impacts.” “Cumulatively significant impacts” are
environmental effects from multiple activities, each too small
to create a disturbance, but that together create a measurable
environmental effect.
Here, the multi-sale EIS, along with the EA, show the
agency gave substantial consideration to the cumulative
impacts from the proposed activities. Section V of the multi-
sale EIS contains an 85-page discussion of cumulative
impacts. Using a 5-step analysis, the multi-sale EIS: (1) iden-
tified “the potential effects of the Beaufort Sea multiple sale
on the natural resources and human environment that may
occur in the Beaufort Sea, on the North Slope, and along the
oil-transportation route”; (2) “analyze[d] other past, present,
and reasonably foreseeable future oil-development activity on
the North Slope/Beaufort Sea . . . ”; (3) “consider[ed] effects
from other actions (sport harvest, commercial fishing, subsis-
tence hunting, and loss of overwintering range, etc.)”; (4) “at-
tempt[ed] to quantify effects by estimating the extent of the
effects . . . and how long effects would last”; and (5)
“weigh[ed] more heavily other activities that are more certain
and geographically in the [zone nearest to shore] and . . . ana-
lyz[ed] more intensively those effects that are of greatest con-
cern.” (emphasis added). The EA updated the above-
described analysis and included information on the potential
effects from claimed global warming. The cumulative effects
analysis considered the projected effects of oil development
and production under all of the leases covered by the multi-
sale EIS, past development and production, reasonably fore-
15608 ALASKA WILDERNESS v. KEMPTHORNE
seeable development and production, and even speculative
development and production prospects.
Relying on its previous cumulative impact analyses, the EA
reasonably determined “the incremental contribution of the
proposed activities to cumulative impacts is expected to be
quite small, and thus not significant.” The EA further
observed that “[t]he activities proposed in [Shell’s exploration
plan] represent a small portion of the projected activities orig-
inally analyzed for a Beaufort Sea lease sale.” As one agency
scientist stated in an e-mail, because there is no new informa-
tion to be discovered in an additional EIS, “[w]e do not need
to reanalyze all cumulative impacts.”
Accordingly, the EA and the documents to which it tiered
articulated a careful and extensive cumulative effects analysis.
The MMS reasonably concluded potential additional cumula-
tive effects were not significant enough to require a costly and
time-consuming new EIS (or “revised” EA), which would
have made compliance with Congress’s 30-day OCSLA
approval mandate impossible.
4. Shell did not need to specify the location of each
drilling well prior to approval of its exploration plan.
Shell’s exploration plan included the locations of the four
wells it planned to drill during the first of three years of drill-
ing. The plan explained Shell intended to drill wells on addi-
tional prospects during the final two years of the plan. The
precise location and extent of drilling in the final two years,
however, depended in part on the resources found during the
first year of drilling.12 The majority incorrectly concludes
OCSLA and its implementing regulations require Shell’s
exploration plan to include the specific locations of every well
that will be drilled.
12
This seems to make sense. Should the oil company commit to drill
next to what turns out to be a dry well?
ALASKA WILDERNESS v. KEMPTHORNE 15609
OCSLA requires that an exploration plan include, “in the
degree of detail which the Secretary may by regulation
require,” among other things, “the general location of each
well to be drilled.” 43 U.S.C. § 1340(c)(3)(C) (emphasis
added). The agency’s regulations require an exploration plan
that includes “[a] map showing the surface location and water
depth of each proposed well and the locations of all associated
drilling unit anchors.” 30 C.F.R. § 250.211. Here, Shell knew
of and proposed four wells “to be drilled,” and provided a
map with the required information for those four wells. This
is sufficient under the regulation. The majority’s demand
Shell provide exact locations of wells before approval of its
exploration plan, when those exact locations depend on what
happens with the earlier wells which must be explored pursu-
ant to the exploration plan, is a Catch-22.
Under the exploration plan approved by MMS, should
Shell seek to drill at sites other than the four specified in its
original exploration plan, it will need to obtain a permit to
drill before doing so. 30 C.F.R. § 250.281(b). Likewise, all
supplemental exploration plans the Regional Supervisor deter-
mines are likely to result in a significant change in the
impacts previously identified and evaluated in the original
exploration plan will be subject to the same procedures for
approval as the original exploration plan. 30 C.F.R.
§ 250.285(c). Thus, Shell will be required to supplement its
exploration plan with information regarding those additional
drilling sites.13
The agency’s interpretation of its own regulations to permit
an entity to determine the exact location of future wells based
on what it discovers in the first year of exploitation is consis-
tent with the statute and its regulations and is entitled to sub-
stantial deference. Thomas Jefferson Univ. v. Shalala, 512
13
Shell would also be required to submit a revised exploration plan if
it proposes to “[c]hange the surface location of a well.” 30 C.F.R.
§ 250.283(a)(2).
15610 ALASKA WILDERNESS v. KEMPTHORNE
U.S. 504, 512 (1994); see also Chevron USA, Inc. v. Natural
Res. Def. Council, 467 U.S. 837, 843 (1984) (“We have long
recognized that considerable weight should be accorded to an
executive department’s construction of a statutory scheme it
is entrusted to administer . . . .”). Any drilling beyond the spe-
cific sites approved in Shell’s exploration plan would have to
undergo separate MMS review pursuant to 30 C.F.R.
§ 250.413(h), which requires the applicant for a permit to drill
to submit a report of conditions as the proposed site. Thus, the
agency’s decision not to require this information now, but
instead to require it later when the information is available,
was not arbitrary and capricious.
Conclusion
In the statutorily required 30-day period MMS had to
approve or deny Shell’s request for an exploration permit, the
agency parsed nearly 1,600 pages of in-depth scientific analy-
sis. This voluminous study—a “hard look” by any rule—
revealed that, while the drilling project might have some
small impact on the environment, that impact was not signifi-
cant enough for MMS to require a costly, time-consuming,
duplicative EIS or “revised” EA. This analysis was neither
arbitrary nor capricious, and is entitled to deference.
I’m afraid the majority has substituted its “expertise” in
environmental science for that of the expert agency to which
Congress entrusted primary analytic responsibility, and in the
process has overruled an en banc decision and nullified Con-
gress’s express 30-day OCSLA approval requirement. We
should not do any of this. Accordingly, for the reasons dis-
cussed above, I would hold we lack jurisdiction over NSB and
REDOIL’s untimely petitions for review, and that MMS’s
approval of Shell’s exploration permit without an additional
EIS or “revised” EA was not arbitrary and capricious.