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NORTH SLOPE BOROUGH v. ANDRUS

January 22, 1980

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 and Richard A. Frank, Defendants, Atlantic Richfield Company et al., Intervenor-Defendants.; VILLAGE OF KAKOTVIK 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

MEMORANDUM OPINION AND ORDER

Before the Court are Cross Motions for Summary Judgment in separate actions brought by the North Slope Borough, et al., the National Wildlife Federation, et al., and the Village of Kaktovik, et al., against Cecil B. Andrus, et al. Plaintiffs are requesting a permanent injunction due to alleged violations of a Federal Trust Responsibility to native Americans, the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq., the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1331 et seq., the Marine Mammal Protection Act (MMPA), 16 U.S.C. § 1361 et seq., The Migratory Bird Treaty Act (MBTA), 16 U.S.C. § 703 et seq., and the Agreement on the Conservation of Polar Bears. The actions giving rise to Plaintiffs' claims stem from an offshore oil and gas lease sale in the Beaufort Sea, north of Alaska. Each of the above statutes provides for jurisdiction in this court, as does 28 U.S.C. § 1331.

 The undisputed material facts of the case may be summarized as follows:

 The Beaufort Sea and nearby shore areas are habitat for many wildlife species, including the Bowhead and Gray whales, polar bears, seals, fish, caribou and enormous numbers of birds. Little is known about the breeding habits, mating activities, critical habitat and response behavior to human activities of the whales. Both species of whales are listed as endangered under the Endangered Species Act. The Bowhead is particularly endangered, and has been completely protected from commercial whaling by the International Convention for the Regulation of Whaling since 1946.

 The best available estimate of the present size of the Bowhead population is 2,264, with a possible range of between 1,783 and 2,865 animals. This figure is a small fraction of its initial population size.

 The Beaufort Sea lease sale was first proposed by the Bureau of Land Management of the Department of Interior (BLM) in November 1974. The National Marine Fisheries Service (NMFS) first formally identified problems associated with the protection of endangered whales and other marine animals in the Beaufort Sea in August 1976. Yet BLM did not begin to consider the impacts of the lease sale on endangered species until February 1978.

 In March 1978, BLM requested formal consultation with NMFS under Section 7(a) of the ESA on the effects of the proposed lease sale in the nearshore Beaufort Sea on the endangered Bowheads and Gray whales. Also in March, the Secretary of the Interior concluded a Memorandum of Understanding with the State of Alaska for a joint lease sale for disputed submerged lands as authorized under Section 7 of the Outer Continental Shelf Lands Act, and a call for nominations was issued jointly by the Department of the Interior and the State of Alaska.

 In response to the call for nominations, recommendations and comments were received from interested members of the public, industry, government, and environmental groups. Thirteen companies nominated all 236 leasing tracts, while comments from some governmental agencies, regional native corporations, and environmental groups recommended that certain areas be deleted from leasing consideration. BLM, in conjunction with the State of Alaska, reviewed the industry nominations and the public comments received in response to the call for nominations. It consulted with the Fish and Wildlife Service, the National Park Service, the Geological Survey, the National Oceanic and Atmospheric Administration, agencies of the State of Alaska, and the North Slope Borough. Following review of nominations and comments and consultation with other agencies, BLM and Alaska selected 186 tracts of submerged lands in the Beaufort Sea for detailed environmental study for possible oil and gas leasing.

 The Bureau of Land Management compiled and published a final Environmental Impact Statement (EIS) which attempts to analyze the environmental impact of the proposed joint lease sale and resulting activities. The EIS contains sections describing (1) the proposed action, (2) the environment of the area affected by the sale and resulting activities, including the animals, ecosystems and socio-economic systems affected by the proposed action, (3) mitigating measures to reduce environmental impacts, (4) unavoidable adverse effects, (5) irreversible and irretrievable commitments of resources involved in the proposed action, and (6) alternatives to the proposed action.

 In the section entitled Unavoidable Adverse Effects, the EIS states, in pertinent part:

 
A serious, adverse environmental impact might result if petroleum hydrocarbons, in the form of an oil slick or diluted formation waters, enter a river delta just before winter freeze-up. The toxicity of the petroleum hydrocarbons and simultaneous depletion of oxygen in the water would eventually kill most of the fish overwintering in the delta. Should oil or other pollutants reach these areas the unavoidable impact would be a reduction of fish numbers. Population recovery may take one to five years.
 
Oil slicks may enter ice leads or drift into shallow lagoons. Some consequences will probably be the oiling and subsequent death of seals or large flocks of birds that swim or dive through the slick. Numbers of both these groups of animals (ringed seals, oldsquaw, and other ducks) would be unavoidably reduced. Polar bear populations would also be reduced.
 
Principal adverse impacts on birds in the proposed lease area will be in the form of acute and chronic oil spills. An acute oil pollution event has the potential of directly causing losses of large numbers of birds, or reducing the availability of food and/or suitability of habitat. The most vulnerable species include those that gather in flocks, swim, or dive. A spill hitting any large concentration of birds would result in high mortality. Chronic oil pollution will occur, increasing environmental stresses. The magnitude of these impacts would vary by species, time of the year, amount and type of oil spilled, and location of the spill.
 
Onshore development will result in the loss of wildlife habitat. Significant shifts in species composition and distribution can occur through habitat alteration. In addition to displacement by direct human intervention, more tolerant avian species could become dominant at the expense of these that are less adaptable.
 
Unavoidable effects can result in a general reduction of wildlife as a result of increased development and disturbance.
 
Based on the worst case assumptions identified in section III, the Bowhead and Gray whales could be severely affected.
 
However, the lack of scientific data precludes quantitative or qualitative assessment of positive or negative impacts of oil and gas development on the Bowhead and Gray whales. Consequently, it is impossible to identify unavoidable effects of oil and gas development on the endangered species of Bowhead and Gray whales.
 
All of the animal species mentioned above are used by the Natives of the area for subsistence purposes. Reduction of species populations will affect the amount available to the Natives. Should this happen an unavoidable effect would be a further erosion of the subsistence lifestyle.

 In the Section entitled Irreversible and Irretrievable Commitment of Resources Involved in the Proposed Action, the EIS states in pertinent part:

 
General industry activity will displace animals traditionally hunted for subsistence by local inhabitants. Marine mammals will probably be displaced by increased ship activity during summer. Activity on land and airborne noises will probably displace birds and other wildlife.
 
These displacements may be irreversible because nuisance species (gulls, ravens, and sick animals, such as rabid arctic foxes) usually move in and occupy vacated niches near settlements. Even if the impacts on biological resources used by local inhabitants are eventually reversible, the social and cultural effects of the impacts must also be considered.
 
As discussed in Section III.D.2-.5, the sociological impacts from the proposed sale are an increase of the present changes toward western values, a reduction of subsistence food gathering and related lifestyle values, and a probable decline in the overall health of the Inupiat. Whether or not these impacts are irreversible and/or irretrievable is debatable. A decline in health resulting in early death is definitely irretrievable. Further declines in Inupiat lifestyle values, culture, and culture related activities may be irreversible. They are definitely irreversible and irretrievable if continued past the collective memory of those activities.

 On August 25, 1978, NMFS made a threshold determination that insufficient information existed to determine whether the lease sale would jeopardize the continued existence of either of these species. It identified important gaps in existing scientific information on these whales, including "the timing of movements and offshore distribution of (these whales) through the proposed lease areas and adjacent waters," the "undisturbed behavior" of the whales, the impact of "OCS drilling sites . . . ship traffic and accidental oil spills on baleen whales," and "the reasons why (these whales) frequent the area." NMFS recommended that BLM conduct additional biological surveys and studies on endangered whales.

 On March 22, 1979, the Marine Mammal Commission wrote a letter to BLM in which it analyzed the research program proposed by BLM's research contractor, the Naval Arctic Research Laboratory. In that letter, the Commission stated that the ongoing research proposal was not responsive to the work statement prepared by BLM's Alaska Office, was not responsive to NMFS' recommendations for a research program, would not provide the information necessary to judge the impact of oil and gas development on endangered whales, and was duplicative of work being conducted or planned by NMFS. In response to these problems, BLM and NMFS signed a cooperative research agreement on Bowhead whale research in the Beaufort Sea on June 26, 1979. Thus, research programs on the breeding grounds, migration routes, feeding behavior and food chain of Bowhead whales are just beginning and, according to the EIS, will not be completed for up to five years.

 On October 15, 1979, NMFS advised BLM that it should adopt four alternative measures to the action proposed in the EIS, to avoid possible adverse impacts on the Bowhead and Gray whales. Three of the measures were adopted in their entirety. The fourth measure was partially adopted. NMFS recommended that BLM prohibit all but emergency drilling between March 31 and November 1 until the Department of Interior could insure that exploration and production was not likely to jeopardize the continued existence of the whales. This measure was recommended because it is highly unlikely that any whales frequent the lease area before the beginning of June.

 The Secretary declined to issue such a broad seasonal restriction, however. Rather, he incorporated the seasonal restriction for a two year period. The only reason that can be gleened from the evidence for limiting the seasonal restriction to two years is that an indefinite seasonal restriction would, according to the Defendants' calculations, render the leases economically worthless.

 On November 2, 1979, the Secretary of the Interior decided to proceed with the sale based on consideration of the EIS and on a final Secretarial Issue Document (SID) analyzing the pros and cons of the sale and discussing, among other things, consultations with NMFS that had occurred subsequent to the EIS.

 On November 7, 1979, Interior published a final notice of sale indicating which tracts in the Beaufort Sea would be leased at a lease sale set for December 11, 1979. The sale was held on that date and bids totalling $ 1.086 billion were received. Bidders were informed that "a two year whale research program has been developed by BLM in order to acquire the information identified by NMFS as necessary for an assessment of the affects of the proposed sale on these two endangered whales (Bowhead and Gray)." "Lessees will be advised as to what, if any, restrictions on operations will be necessary to be consistent with the Endangered Species Act. This determination will be made by the Secretary of Interior in consultation with NMFS." Bidders were informed that it might be necessary to continue the research program beyond two years.

 The effects of the lease sale and subsequent activities on the indigenous population are enormous. As the Environmental Impact Statement indicates, the Inupiat Eskimos (who are native peoples of the North Slope), depend upon hunting and fishing of whale, seals, fish, caribou, and other wildlife for their subsistence. "These activities occur over vast tracts of land and sea. They involve social and cultural tradition, health and nutrition, and the simple economics of providing for food, clothing, and shelter." "Any substantial reduction in subsistence gathering would drastically hurt the Inupiat healthwise and socio-culturally." "The significance of subsistence is not in food gathering alone, but with the intertwining of food gathering and the socio-cultural identification of a traditional and unique lifestyle. The Inupiat lifestyle gives the Natives of the region a sense of pride, identity, distinction and unity."

 "If whaling were to permanently cease among the Inupiat of Barrow because of outside intervention, the results would be catastrophic. The same is true of the cultural complexes of Nuiqsut and Kaktovik. Socio-culturally the damage would be irreparable."

 The scientific panel on the cultural aspects of Alaskan aboriginal whaling, which was sponsored by the International Whaling Commission, has found that "continued limitations on hunting of the Bowhead whale, together with severe restrictions on other subsistence activities, such as caribou hunting, threaten the survival of Eskimo culture and the organization of their society." The panel also found that reduced subsistence activities could cause increased social and cultural disruptions, which already are being manifested in "violence, drug and alcohol dependence, family breakdown, and frightenly (sic) high suicide rates."

 Defendant Frank has stated that "the (native) diet of the Eskimo population confers health advantages on the population necessary for its survival in a harsh climate." He also stated that no alternative food source "is a viable alternative of substantial size to the Bowhead whale" and that importation of commercial foodstuffs "would almost surely have adverse effects upon the health of the Eskimo population." "Indeed, when changes in the Eskimo diet have taken place, adverse consequences in nutritional health have been documented. Other alternative subsistence food sources, available to a limited extent, cannot substantially replace whale meat because of problems associated with availability, hunting effort, and Eskimo acceptance."

 The scientific panel on the nutritional aspects of aboriginal whaling, which was sponsored by the International Whaling Commission, has found that when Eskimos have changed to a modern diet, their health and nutrition have deteriorated. The Nutrition Panel stated that "there is little doubt that preservation of traditional nutrition habits and lifestyle, and that includes in particular consumption of meat and organs from sea mammals, is highly desirable for Eskimos in order to safeguard their health."

 Finally, the EIS found that "there are not sufficient employment opportunities to enable the Inupiat to subsist in a total cash economy. Thus, it is highly probable that forcing the Inupiat to greatly change their subsistence lifestyle would reduce them to economic chattels."

 Opposing the environmental and sociological obstacles involved in the lease sale are its perceived advantages, to wit : (1) the possible recovery of significant quantities of oil and gas, and (2) the enormous profit-making potential for successful lessees. According to the EIS, "the chance of discovering commercial quantities of oil and gas is 50 percent." The estimated quantity of recoverable oil is between 500 million and 1.25 billion barrels; the most likely amount recoverable is 750 million barrels. The estimated quantity of recoverable gas ranges between 875 billion cubic feet and 3.125 trillion cubic feet; the most likely amount that can be recovered is 1.625 trillion cubic feet. According to the EIS, the likely value of Beaufort Sea oil (in 1978 dollars) ranges from $ 3.7 billion to $ 9.3 billion at the wellhead and $ 7.6 billion to $ 18.6 billion at the downstream market.

 A tangential factor affecting this litigation is the existence of a dispute between the State of Alaska and the Federal government regarding ownership of certain tracts. Thus, some of the tracts subject to the lease sale are owned solely by the State of Alaska, some are owned solely by the United States, and some are being jointly leased pending resolution by the Supreme Court of the ownership dispute. Only the Federally owned and disputed tracts are before this Court.

 I. Federal Trust Responsibility

 Plaintiffs allege that the Federal government has a trust responsibility to the Inupiats, that this trust responsibility requires the Federal government to protect the Inupiats' subsistence culture, that the trust responsibility must be held to exacting scrutiny, and that the Secretary has shirked his responsibility in the instant case. Defendants contend that either (1) no trust responsibility exists, or (2) any generalized trust responsibility that does exist has been fulfilled by the enactment of measures designed to mitigate the impact of the lease sale on the Inupiats.

 A trust responsibility can only arise from a statute, treaty, or executive order. While treaties between Indian tribes and the Federal government have given rise to the notion of a generalized trust responsibility to Native Americans, *fn1" the underlying bases for the trust responsibility are the treaties themselves. *fn2" Defendants contend that no specific statute, treaty, or executive order creates a trust responsibility to the Inupiats, and that the Alaska Native Claims Settlement Act (ANCSA) 43 U.S.C. § 1601 et seq. precludes the existence of a generalized trust responsibility. *fn3"

 Notwithstanding the ANSCA, a trust responsibility exists in the instant case. Every statute and treaty designed to protect animals or birds has a specific exemption for Native Alaskans who hunt the species for subsistence purposes. *fn4" These statutes have been construed as specifically imposing on the Federal government a trust responsibility to protect the Alaskan Natives' rights of subsistence hunting. *fn5" This interpretation is consistent with the legislative history underlying the enactment of those statutes. *fn6"

 The trust responsibility to the Alaskan Natives does not, however, transcend the statutes creating that responsibility. Rather, it serves three purposes, to wit: (1) it precludes the use of the environmental statutes to undermine the subsistence cultures, *fn7" (2) it requires the Secretary to be cognizant of the needs of the Inupiat culture, and (3) it demands of the Federal government (and thus the courts) rigorous application of the environmental statutes to protect the species necessary for the Inupiats' subsistence. *fn8" In the instant case, the environmental statutes are not being employed to the detriment of the Inupiats. Furthermore, the EIS alerted the Secretary to the impact of the lease sale and resulting activities on the Inupiat lifestyle. However, to the extent the Secretary has not complied with the Endangered Species Act, he has also shirked his trust responsibility to the Inupiats. Plaintiffs' ESA claims are discussed in Section III, infra.

 II. National Environmental Policy Act

 Plaintiffs argue that the Secretary has failed to fulfill his obligations under the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA). They contend that the Environmental Impact Statement (EIS) prepared in conjunction with the lease sale proposal does not satisfy the requirements of § 102(2)(C) of NEPA. That section requires, in connection with any proposed major federal action "significantly affecting the quality of the human environment," a detailed statement discussing among other things "(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (and) (iii) alternatives to the proposed action." *fn9" Plaintiffs argue that the EIS prepared by DOI fails to consider certain impacts of the lease sale and fails to consider significant alternatives to the sale proposal.

 NEPA's requirement of an adequate EIS is designed to insure that federal agencies consider the environmental consequences of proposed action at the time of decision-making. The EIS also serves to alert Congress and the public to those consequences. *fn10" Thus, the EIS must include a comprehensive discussion of all impacts of the proposal and of all reasonable alternatives to it. NEPA's requirements are essentially procedural. *fn11" They are designed to insure that decisions are fully informed and well considered. *fn12" The statute does not, however, mandate a particular result to the decision-making process. Although a decision must be made in light of all environmental consequences, NEPA does not require that an agency elevate environmental concerns over all others. *fn13" The statute does not preclude a decision that presents either the risk or certainty of serious environmental damage so long as the decision is not arbitrary and capricious. *fn14"

 In a NEPA case, the court's function is limited. *fn15" "The only role for a court is to insure that the agency has considered the environmental consequences," of the action being considered. *fn16" If the EIS has alerted the decision maker to those consequences so that he has taken a "hard look" at them, it satisfies the requirements of NEPA. *fn17" Moreover, although NEPA requires that the EIS alert the decision maker to both the consequences of a proposal and alternatives to it, the agency's responsibility under NEPA is guided by a rule of reason. *fn18" The decision of how much detail to include is one for the agency itself. The discussion need not be exhaustive so long as it provides "information sufficient to permit a reasoned choice of alternatives so far as environmental aspects are concerned." *fn19" The Court's role is to determine whether the EIS provides the decision maker with sufficient detail to make that reasoned choice. Thus an oversight on a peripheral issue provides no basis for overturning an administrative decision properly made after an otherwise exhaustive proceeding. *fn20" Additionally, although NEPA obligates an agency to seek out the environmental consequences of a proposal and consider every significant aspect of its environmental impact, *fn21" interested parties cannot complain about the treatment given their particular concerns unless they have alerted the agency to their contentions, so long as the agency has given reasonable consideration to all significant impacts. *fn22" It is within this framework that the Court must analyze Plaintiffs' challenges to the EIS prepared in conjunction with the Beaufort Sea lease sale.

 A. Worst Case Analysis

 It is undisputed that much is still unknown about the consequences of oil exploration and drilling in severe environments such as the Beaufort Sea. Little is known, for example, about the Bowhead whale and about the impact which exploration and drilling will have on the species. *fn23" NEPA requires that the "cost of uncertainty i. e., the costs of proceeding without more and better information" be considered in the decision-making process. *fn24" Current Council on Environmental Quality Regulations require the inclusion in the EIS of a worst case analysis where there are gaps in relevant information or scientific uncertainty. *fn25" No worst case analysis was required in the instant case, however, since the draft EIS was prepared before the effective date of those regulations. *fn26" Nevertheless, the Department of the Interior chose to include a worst case analysis as a means of alerting the decision maker to the "cost of uncertainty."

 Plaintiffs challenge the adequacy of the worst case analysis included in the Beaufort Sea lease sale EIS. They argue that having chosen to include a worst case analysis, the Agency was obligated to prepare an accurate one so as not to mislead the decision maker. Plaintiffs argue that the worst case analysis contained in the EIS is seriously flawed and misled the decision maker in two ways. They contend that it ignores many areas of uncertainty while grossly underestimating the worst possible impacts in areas of uncertainty that it does address.

 Plaintiffs argue that the worst case analysis is misleading because it discusses only potential impacts on the Bowhead and Gray whales while uncertainty also exists concerning the project's possible impact on a number of other species inhabiting the area. This argument is unpersuasive. In the absence of a regulation requiring a more complete worst case analysis, it was reasonable for the Department to limit its formal worst case analysis to the endangered species that are threatened by the lease sale activities. Other sections of the EIS deal with the project's potential impact on birds, fish and polar bears and alert the reader to gaps in information concerning those species. Those sections also discuss known probable impacts and describe the general nature of impacts that can be expected in areas of uncertainty. The agency's decision to include a qualitative discussion of potential effects where uncertainty precludes ...


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