Native Village of Point Hope v. Ken Salazar

FILED
NOT FOR PUBLICATION MAY 13 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
NATIVE VILLAGE OF POINT HOPE; No. 09-73942
ALASKA WILDERNESS LEAGUE;
CENTER FOR BIOLOGICAL
DIVERSITY; NATURAL RESOURCES
DEFENSE COUNCIL; PACIFIC MEMORANDUM *
ENVIRONMENT; RESISTING
ENVIRONMENTAL DESTRUCTION
ON INDIGENOUS LANDS, REDOIL;
SIERRA CLUB; DEFENDERS OF
WILDLIFE; NORTHERN ALASKA
ENVIRONMENTAL CENTER;
OCEANA,
Petitioners,
v.
KEN SALAZAR, Secretary Of The
Interior; MINERALS MANAGEMENT
SERVICE,
Respondents,
STATE OF ALASKA; SHELL
OFFSHORE INC.,
Respondents-Intervenors.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
ALASKA ESKIMO WHALING No. 09-73944
COMMISSION; INUPIAT
COMMUNITY OF THE ARCTIC
SLOPE,
Petitioners,
SHELL OFFSHORE INC.; STATE OF
ALASKA,
Intervenors,
v.
KEN SALAZAR, Secretary Of The
Interior; MINERALS MANAGEMENT
SERVICE,
Respondents.
NATIVE VILLAGE OF POINT HOPE; No. 10-70166
ALASKA WILDERNESS LEAGUE;
CENTER FOR BIOLOGICAL
DIVERSITY; DEFENDERS OF
WILDLIFE; NATURAL RESOURCES
DEFENSE COUNCIL; NORTHERN
ALASKA ENVIRONMENTAL CENTER;
PACIFIC ENVIRONMENT; RESISTING
ENVIRONMENTAL DESTRUCTION
ON INDIGENOUS LANDS, REDOIL;
SIERRA CLUB; OCEANA; NATIONAL
AUDUBON SOCIETY, INC.; THE
WILDERNESS SOCIETY, INC.; OCEAN
CONSERVANCY,
Petitioners,
STATE OF ALASKA,
Intervenor,
SHELL GULF OF MEXICO INC.,
Intervenor,
v.
KEN SALAZAR, Secretary Of The
Interior; MINERALS MANAGEMENT
SERVICE,
Respondents.
ALASKA ESKIMO WHALING No. 10-70368
COMMISSION; INUPIAT
COMMUNITY OF THE ARCTIC
SLOPE,
Petitioners,
v.
KEN SALAZAR, Secretary Of The
Interior; MINERALS MANAGEMENT
SERVICE,
Respondents,
SHELL GULF OF MEXICO INC.,
Respondent-Intervenor.
On Petition for Review of a Final Agency Action
Minerals Management Service
Argued and Submitted May 6, 2010
Portland, Oregon
Before: KOZINSKI, Chief Judge, BEA and IKUTA, Circuit Judges.
In these expedited petitions for review, we consider the allegations of Native
Village of Point Hope (NVPH) and Alaska Eskimo Whaling Commission (AEWC)
(collectively, “petitioners”) that the Minerals Management Service (MMS) failed
to discharge its obligations under the National Environmental Policy Act (NEPA)
and the Outer Continental Shelf Lands Act (OCSLA) in approving Shell Offshore
Inc. and Shell Gulf of Mexico Inc.’s (collectively, “Shell”) proposed Beaufort and
Chukchi Sea Exploration Plans. According to the petitioners, there are multiple
deficiencies in the two Environmental Assessments prepared by the MMS, as well
as deficiencies in both of Shell’s proposed exploration plans.
We have carefully reviewed the thousands of pages of record and considered
each of the alleged deficiencies in context. Under our deferential standard of
review, we conclude that, as to both exploration plans, the MMS has met its
obligations under NEPA to take a “hard look at the consequences of its actions,” to
“base[] its decision on a consideration of the relevant factors,” and to “provide[] a
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convincing statement of reasons to explain why a project’s impacts are
insignificant.” Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 730
(9th Cir. 2001) (alteration, citations, and internal quotation marks omitted). Based
on our thorough review of the record, we also conclude that the MMS’s decision to
approve Shell’s exploration plans under OCSLA was “supported by substantial
evidence on the record considered as a whole.” 43 U.S.C. § 1349(c)(6). In
addition, because petitioners failed to prove that the MMS “relied on factors
Congress did not intend it to consider, entirely failed to consider an important
aspect of the problem, or offered an explanation that runs counter to the evidence
before [the MMS] or is so implausible that it could not be ascribed to a difference
in view or product of agency expertise,” Lands Council v. McNair, 537 F.3d 981,
987 (9th Cir. 2008) (en banc) (internal quotation marks omitted), we conclude that
the MMS did not act arbitrarily or capriciously. Accordingly, we deny the
petitions and grant Shell’s motion to strike the petitioners’ extra-record
declarations. Because of the expedited nature of this case, no motions to stay the
mandate will be granted.
DENIED.
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