Northern Alaska Environmental Center v. Kempthorne

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