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NORTH SLOPE BOROUGH v. ANDRUS

December 7, 1979

NORTH SLOPE BOROUGH et al., Plaintiffs,
v.
Cecil D. ANDRUS and Richard A. Frank, Defendants, Atlantic Richfield Company et al., Intervenor-Defendants.; NATIONAL WILDLIFE FEDERATION et al., Plaintiffs, v. Cecil D. ANDRUS an Richard A. Frank, Defendants, Atlantic Richfield Company et al., Intervenor-Defendants.; VILLAGE OF KAKTOVIK et al., Plaintiffs, v. Cecil D. ANDRUS and Richard A. Frank, Defendants, Atlantic Richfield Company et al., Intervenor-Defendants.



The opinion of the court was delivered by: ROBINSON, JR.

MEMORANDUM OPINION AND ORDER

In this case three groups of Plaintiffs have filed suit against Cecil D. Andrus, Secretary of the United States Department of Interior and Richard A. Frank, Administrator of the National Oceanic and Atmospheric Administration, seeking to prevent the sale of oil and gas leases in the Beaufort Sea. Nine major oil producers have been granted leave to intervene as party-defendants, and the State of Alaska has been permitted to appear as amicus in support of the sale.

 The sale of these leases is a jointly planned Federal-state action in an area north of the State of Alaska, offshore from the Prudhoe Bay Oil Fields and the northerly terminal of the Trans-Alaska Pipeline which serves Prudhoe Bay. Geographically, the area of the proposed sale is part of the north Alaska coast characterized by offshore, fringing, barrier islands. There is an ongoing dispute between the State of Alaska and the Federal Government over the ownership of the submerged land inside the islands. An action has been filed in the Supreme Court to resolve that dispute, United States v. Alaska, 442 U.S. 937, 99 S. Ct. 2876, 61 L. Ed. 2d 307. To permit leasing and developing in the area pending the resolution of the dispute, the State of Alaska and the United States have entered into an agreement as authorized by the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1336. That agreement provides for the sale and administration of the leases and for the impounding of revenues until the case is decided.

 The area of the proposed sale which is the subject of this action contains undisputed state land, undisputed federal land and disputed land. The State and the United States have reached an agreement to hold a joint lease sale involving the area of the disputed land in the near-shore Beaufort Sea, prior to the Supreme Court's decision. By publication in the Federal Register, the lease sale was noticed for December 11, 1979.

 Before the Court for immediate resolution are motions by all Plaintiffs for a Preliminary Injunction, which motions are strenuously opposed by the named Defendants, the Intervenor-Defendants and the State of Alaska as amicus.

 The standards that govern this Court's determination of whether a preliminary injunction should issue are those set forth in Washington Metropolitan Area Transit Commission v. Holiday Tours, 182 U.S.App.D.C. 220, 559 F.2d 841 (D.C. Cir. 1977), and Virginia Petroleum Jobbers Ass'n v. FPC, 104 U.S.App.D.C. 106, 259 F.2d 921 (D.C. Cir. 1958). The Court must consider (1) whether Plaintiffs have demonstrated a substantial likelihood that they will ultimately prevail on the merits; (2) whether Plaintiffs will suffer irreparable harm absent injunctive relief; (3) whether injunctive relief will harm other interested parties; and (4) whether the public interest favors the issuance of injunctive relief pending a determination of the merits.

 For Plaintiffs to prevail on the merits, they must prove that the Defendants' actions were arbitrary and capricious. Based on the evidence presented thus far, there is a substantial likelihood that Plaintiffs will meet this burden. The Endangered Species Act, 16 U.S.C. § 1531, et seq., (ESA) requires federal agencies to protect endangered species. The Bowhead Whale and the Grey Whale are endangered species within the meaning of the ESA. The Supreme Court, in interpreting Section 7 of the Act, stated that

 
Its very words affirmatively command all federal agencies "to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence" of an endangered species or "result in the destruction or modification of habitat of such species . . . " This language admits of no exception. (Emphasis in the original) TVA v. Hill, 437 U.S. 153, 173, 98 S. Ct. 2279, 2291, 57 L. Ed. 2d 117 (1978).

 Subsequent to TVA v. Hill, Congress amended the ESA to provide for an exception. This exception is irrelevant to the instant case, however, because Defendants have not pursued the procedural requirements set forth in § 7 of the Act. Plaintiffs have made a substantial showing (1) that the lease sale will jeopardize the existence of the Bowhead Whale and (2) that the Secretary has not insured that the sale will not jeopardize the Bowheads' existence.

 Section 7(d) of the ESA was added to the Act after the decision in TVA v. Hill, supra. It states that

 
After the initiation of consultation required under subsection (a) of this section, the Federal agency and the permit or license applicant shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would avoid jeopardizing the continued existence of any endangered or threatened species or adversely modifying or destroying the critical habitat of any such species.

 The lease sale in the instant case is not merely the transfer of a possessory interest in land. It is being effectuated to encourage exploration and subsequent development of oil and gas reserves. Both the lessor and the lessee expect that exploitation of those reserves will inevitably result from the sale. See 44 Fed.Reg. 64752 (1979). A massive amount of resources must be invested to facilitate exploration. Given the Tellico Dam experience, it is clear that the investment of a massive amount of resources before the safety of an endangered species is insured is precisely what Congress intended to preclude with the enactment of § 7(d). Plaintiffs have made a substantial showing that the lease sale in question would violate § 7(d) of the ESA.

 Furthermore, The Outer Continental Shelf Lands Act, 43 U.S.C. § 1331, et seq. indicates that, once a lease has been granted, revocation is unlikely. 43 U.S.C. § 1334(a) provides that cancellation will only ...


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