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July 22, 1991

MANUEL LUJAN, Secretary of the U.S. Department of the Interior; U.S. DEPARTMENT OF THE INTERIOR, Defendants. GWICH'IN STEERING COMMITTEE, Plaintiff v. MANUEL LUJAN, Secretary of the U.S. Department of the Interior; U.S. DEPARTMENT OF THE INTERIOR, Defendants and ARCTIC SLOPE REGIONAL CORPORATION and KAKTOVIK INUPIAT CORPORATION, Defendant-Intervenors

Joyce Hens Green, United States District Judge.

The opinion of the court was delivered by: GREEN


 In these consolidated actions, plaintiffs challenge a legislative environmental impact statement ("LEIS") accompanying a statutorily mandated report conducted by defendants concerning the future management of the coastal plain of the Arctic National Wildlife Refuge ("ANWR") in Alaska. Defendants and defendant-intervenors filed a motion to dismiss the complaints. Subsequently, plaintiffs filed a motion for a preliminary injunction to compel defendants to circulate as a draft supplemental environmental impact statement ("SEIS") a recent report issued by defendants. A hearing was held on the latter motion. As explained below, the motion to dismiss is granted in part and denied in part, the motion for preliminary injunction is denied, but declaratory judgment is entered for plaintiffs on one claim raised in the preliminary injunction motion.


 A. Statutory Framework and History

 ANWR, established in 1960 to preserve the area's unique wildlife, wilderness, and recreational values, was included in the sixteen National Wildlife Refuges created by Congress in Alaska in the Alaska National Interest Lands Conservation Act, Pub. L. No. 96-487, 94 Stat. 2449 (1980) (codified at 16 U.S.C. §§ 3111 et seq.) ("ANILCA"). ANWR covers approximately 19 million acres, of which 1.55 million acres make up the coastal plain and are designated as an area of study. See id. § 1002, 16 U.S.C. § 3142. The coastal plain's value stems from its status as the most biologically productive area of ANWR and its use by a large number and diversity of fish and wildlife, including as calving grounds for the migratory Porcupine Caribou Herd. See U.S. Department of the Interior, 1 Arctic National Wildlife Refuge, Alaska, Coastal Plain Resource Assessment: Report and Recommendation to the Congress of the United States and Final Legislative Environmental Impact Statement ("ANWR Report") 1 (Apr. 1987).

 The largest deposit of oil and gas discovered in North America, the Prudhoe Bay Oilfield, lies sixty miles west of ANWR. In 1978, the Senate Energy and Natural Resources Committee reported that the northwestern corner and the central coastal plain of the Arctic Range were probably among the best prospects for oil and gas development in arctic Alaska. S. Rep. No. 1300, 95th Cong., 2d Sess. 154, 203-04 (1978). Later, the Committee concluded that the information concerning the effect on the environment of the development and production of such resources was uncertain and conflicting. S. Rep. No. 413, 96th Cong., 1st Sess. 241 (1979). The inadequacy of the available information helped lead to and inform the enactment of the ANILCA sections at the center of the instant controversy.

 Sections 1002 and 1003 of ANILCA, 16 U.S.C. §§ 3142, 3143, in essence defer Congressional decision on ANWR until certain information is gathered on the area and findings and recommendations submitted. This legislated decisionmaking process requires the Secretary of the Interior ("Secretary") to conduct and publish a biological assessment (a continuing study of the coastal plain's fish and wildlife and their habitat) within eighteen months of ANILCA's enactment. This "baseline study," ultimately published by the Interior Department's Fish and Wildlife Service, was to be updated to include revisions thereto. ANILCA § 1002(c), 16 U.S.C. § 3142(c). At the same time, the statute required the Secretary to establish, in regulations grounded in the results of the baseline study, initial guidelines to govern the conduct of exploratory activities, and to publish these guidelines within two years of ANILCA's enactment. Id. § 1002(d), 16 U.S.C. § 3142(d). The statute prohibited approval of any exploration plans for the area during that period. Id. § 1002(e)(2), 16 U.S.C. § 3142(e)(2). A further subsection required that along with the guidelines, an environmental impact statement be conducted on the exploration regulations. Id. § 1002(d)(2), 16 U.S.C. § 3142(d)(2). The guidelines were to be revised to reflect any changes in the baseline study and any other appropriate information that became available. Id. The initial baseline report was published in 1982 and the final baseline report was published in 1986, after revisions; the exploration activities EIS was issued in 1983, as were the § 1002(d) regulations. ANWR Report at 3; see 50 C.F.R. § 37. *fn1"

 The subsection at issue here, subsection 1002(h) of the statute, required the Secretary to prepare a report ("§ 1002 Report") containing his findings and recommendations concerning the coastal plain and to submit this report to Congress between five years and five years and nine months after the enactment of ANILCA. 16 U.S.C. § 3142(h). Congress specified that the § 1002(h) Report contain the following:

(1) the identification by means other than drilling of exploratory wells of those areas within the coastal plain that have oil and gas production potential and estimate of the volume of the oil and gas concerned;
(2) the description of the fish and wildlife, their habitats, and other resources that are within the areas identified under paragraph (1);
(3) an evaluation of the adverse effects that the carrying out of further exploration for, and the development and production of, oil and gas within such areas will have on the resources referred to in paragraph (2);
(5) an evaluation of how such oil and gas relates to the national need for additional domestic sources of oil and gas; and
(6) the recommendations of the Secretary with respect to whether further exploration for, and the development and production of, oil and gas within the coastal plain should be permitted and, if so, what additional legal authority is necessary to ensure that the adverse effects of such activities on fish and wildlife, their habitats, and other resources are avoided or minimized.

 Id. § 3142(h)(1)-(6). Section 1003 expressly prohibits oil and gas leasing and other development leading to production in ANWR, as well as oil and gas production therefrom, until authorized by Act of Congress. Id. § 3143. *fn2"

 The Secretary initially intended to submit the § 1002 Report by itself to Congress, but then added an LEIS. However, the Secretary attempted to submit the LEIS without prior public circulation. In 1986, the Ninth Circuit held that the Secretary had violated the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. ("NEPA"), by failing to submit a draft of the LEIS for public comment. Trustees for Alaska v. Hodel, 806 F.2d 1378 (9th Cir. 1986). *fn3" After circulation of the draft, the § 1002 Report and final LEIS were subsequently prepared and submitted to Congress as one integrated document in May 1987. *fn4" Congress has not enacted any laws as a result of the ANWR Report as of this date, although it has held over forty hearings in various committees on the subject of ANWR.

 After plaintiffs filed these suits, the Interior Department issued a report prepared by its Bureau of Land Management ("BLM") entitled "Overview of the 1991 Arctic National Wildlife Refuge Recoverable Petroleum Resource Update" (BLM, Apr. 1991) (" 1991 Overview "). The 1991 Overview updates the assessment of the 1987 ANWR Report and states that it "makes a considerable contribution to the knowledge and understanding of the 1002 area" and, among other changes, revises the ANWR Report's assessment of the marginal probability of economic success in tapping oil reserves in ANWR from 19 percent to 46 percent. This report, which was provided to Congress as part of testimony by the Secretary and others, does not identify the sources of data on which its conclusions are based, and was not circulated to the public prior to its release.

 B. The Original Lawsuit

 Plaintiffs are a collection of national and local Alaskan environmental organizations, *fn5" as well as the Gwich'in Steering Committee, a corporation made up of Native members and governments of the Gwich'in-speaking villages in northeastern Alaska and northwestern Canada. Their complaints *fn6" allege that the Secretary did not fulfill Congress' mandate that the issues identified by § 1002 of ANILCA and NEPA be studied thoroughly, credibly, and objectively. They also assert that the Department of the Interior's administration of the study program violated statutory requirements and that its actions and omissions since 1981 demonstrate that it has always intended to recommend full leasing of the coastal plain, a bias reflected in the technical and legal inadequacies of the ANWR Report. Plaintiffs claim that these actions and omissions violate NEPA and ANILCA and that they are arbitrary and capricious, an abuse of discretion and therefore also violate the Administrative Procedure Act, 5 U.S.C. § 706 ("APA"). For relief, plaintiffs seek a declaratory ruling that defendants violated NEPA and ANILCA, as well as an injunction directing defendants to comply with these statutes by revising the LEIS or preparing a supplemental LEIS.

 Defendants, the Secretary of the Department of the Interior and the Department of the Interior, move to dismiss the complaint on the following grounds: plaintiffs lack standing to sue because they have not shown injury in fact and because they are not within the zone of interests protected by § 1002; the adequacy of the § 1002 Report is not justiciable; section 1002 precludes revision or supplementation of the LEIS; and, plaintiffs' claim under § 810 of ANILCA, 16 U.S.C. § 3120, is not ripe. Intervenor-defendants, the Arctic Slope Regional Corporation ("ASRC") and the Kaktovik Inupiat Corporation ("KIC"), Alaska Native Corporations that own legal interests in lands within ANWR, *fn7" adopt and supplement defendants' arguments, as does amicus curiae North Slope Borough ("NSB"), a unit of municipal government of the State of Alaska. *fn8"

 C. Motion for Preliminary Injunction

 On June 28, 1991, plaintiffs filed a motion for preliminary injunction to compel defendants to issue the 1991 Overview in the form of a draft supplement to the LEIS on the § 1002 Report for public review and comment pursuant to 40 C.F.R. § 1502.9. They also request an injunction ordering defendants to release to the public all nonconfidential data and all defendants' analyses thereof relied on in preparing the 1991 Overview.

 Defendants oppose the motion. In addition to their reasons for dismissing the entire action, they claim that plaintiffs cannot meet the rigorous requirements for injunctive relief. In particular, they contend that plaintiffs cannot succeed on the merits because the 1991 Overview does not present "significant new information" within the meaning of applicable NEPA regulations. Defendant-intervenors claim that LEISs are not subject to the supplementation requirement under any circumstances. As to the request for the release of the underlying data, defendants contend that issue is moot because plaintiffs received the pertinent nonconfidential information through a Freedom of Information Act ("FOIA") request. Certain proprietors of data that may have been employed in preparing the 1991 Overview, who were permitted to intervene at this stage of the proceedings, *fn9" urge the Court not to grant plaintiffs' second request because it would cause them irreparable injury.


 A. NEPA Standing

 At the outset, plaintiffs claim that defendants are collaterally estopped from raising the issue of plaintiffs' standing under NEPA because that issue was fully litigated and decided in their favor in Trustees for Alaska v. Hodel, 806 F.2d 1378 (9th Cir. 1986). In that case -- essentially a precursor to this action -- the Ninth Circuit held that a district court had properly enjoined the Secretary from submitting the § 1002 Report without circulating a draft EIS thereon for public notice and comment. Defendants there (the same defendants here) had urged reversal of the lower court's ruling because, inter alia, plaintiffs did not have standing. The court summarily rejected their arguments:

The Trustees alleged in their complaint that their members had a procedural right under NEPA and the CEQ regulations to comment on the LEIS and 1002 report before the Secretary submits the report to Congress. The Trustees have standing to challenge alleged agency violations of these procedural rights.

 806 F.2d at 1380. Defendants claim that this action involves a fundamentally different issue and therefore collateral estoppel cannot apply. They point out that the Ninth Circuit did not rule on whether plaintiffs here would have standing to challenge the adequacy -- the substance -- of the § 1002 Report and LEIS, which are currently before Congress, or to force revision or supplementation of the § 1002 Report and LEIS.

 Collateral estoppel applies to bar relitigation of an issue that a court of competent jurisdiction has actually and necessarily decided. In other words, the former decision is conclusive in a subsequent suit involving a party to the prior litigation. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979); Clark-Cowlitz Joint Operating Agency v. FERC, 264 U.S. App. D.C. 58, 826 F.2d 1074, 1079 (D.C. Cir. 1987) (en banc), cert. denied, 485 U.S. 913, 99 L. Ed. 2d 247, 108 S. Ct. 1088 (1988). It is the identity of the issues that is contested here. Plaintiffs claim that the difference lies "only in the specifics of NEPA compliance alleged." Those specifics, however, are significant enough to preclude the use of collateral estoppel. In Trustees, plaintiffs were wholly denied their rights under NEPA to comment on the draft LEIS, and the Court ruled they had standing to challenge that deficiency. Here, plaintiffs wish to exercise their purported right to have the final EIS be adequate. Thus, plaintiffs' attempt to invoke collateral estoppel as to their standing in this action must be rejected.

 At the same time, however, defendants are not correct that Trustees has no bearing here. The Ninth Circuit did decide one critical issue fully litigated there and again raised here: whether the LEIS accompanying the § 1002 Report is governed by the exemption for legislative environmental impact statements set forth in NEPA's implementing regulations. These regulations provide that "except for proposals for legislation as provided in § 1506.8 environmental impact statements shall be prepared in two stages and may be supplemented." 40 C.F.R. § 1502.9. Section 1506.8 exempts an LEIS from the requirement that an EIS be prepared in two stages, permitting an agency to transmit a single LEIS to Congress, agencies, and the public for review and comment, except when "the proposal results from a study process required by statute." Id. § 1506.8(b)(2)(ii). In other words, an LEIS resulting from a study process required by statute is subject to the procedures mandating both a draft and final EIS. In Trustees, the Ninth Circuit found that "the modified procedures for legislative proposals appear to be a narrow exception, not the norm," 806 F.2d at 1383, and held that "section 1002(h) [of ANILCA] is a study process required by statute under subsection 1506.8(b)(2)(ii)," id. This ruling, necessary to support the judgment in Trustees, see Synanon Church v. United States, 261 U.S. App. D.C. 13, 820 F.2d 421, 424, 60 A.F.T.R.2d (P-H) 5062 (D.C. Cir. 1987), cannot be relitigated here. *fn10" That ruling has consequences here, for it means that the LEIS is subject to the same requirements as any EIS.

 The Court thus turns to an analysis of whether the complaints give rise to standing under NEPA.

 Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S. Ct. 752, 758, 70 L. Ed. 2d 700 (1982) (quotations omitted). "No more fundamental component of standing doctrine exists than the requirement of a presently demonstrable injury in fact directly traceable to the defendant's supposedly unlawful actions. . . . In addition, there must be a direct causal connection between plaintiff's asserted injury and defendant's challenged action." Albuquerque Indian Rights v. Lujan, 930 F.2d 49, 54 (D.C. Cir. 1991) (citations omitted). Where the challenge is to administrative action, plaintiffs must also show that they are "arguably within the zone of interests to be protected or regulated" by the statutory framework within which their claims arise. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S. Ct. 827, 830, 25 L. Ed. 2d 184 (1970).

 Plaintiffs here allege two injuries in their complaints. First, plaintiffs state that the failure of the LEIS to comply with NEPA, ANILCA, and the APA makes the LEIS "so inadequate that Congress cannot expect to have the full information and analysis it needs to make its decision. Accordingly, should Congress decide, based on this document, to open the coastal plain to oil and gas leasing and development, its decision to do so will be uninformed and will adversely affect the plaintiffs," who use and enjoy that area. Complaint No. 89-2345, para. 5. Second, plaintiffs aver that the deficiencies in the LEIS adversely affect their public participation rights, in that they "have been and will be frustrated in their ability to participate" in the debate over the fate of the coastal plan "because the data and analyses in the LEIS are flawed and inadequate." Id. P 6. *fn11"

 Defendants claim that these purported injuries -- which the Court must accept as true for the purposes of a motion to dismiss *fn12" -- are insufficient to establish the injury in fact necessary for standing under NEPA. These harms, defendants assert, are speculative and, if they occur, would be a result not of the challenged agency action but of the passage of legislation by Congress. Furthermore, they argue, plaintiffs cannot claim injury to their right to public participation because they have had (and have taken advantage of) the opportunity to present their views to the various institutions involved (e.g., the Department of the Interior, Congress).

 When challenging an agency's action under NEPA, plaintiffs must show that they have been "adversely affected" or "aggrieved" within the meaning of NEPA and within the zone of interests protected by the statute. NEPA's purpose of ensuring well-informed government decisions tends to lower the threshold for standing under that statute. See Competitive Enterprise Institute v. National Highway Traffic Safety Administration, 901 F.2d 107, 123 (D.C. Cir. 1990). As our Circuit has recently held, "the procedural and informational thrust of NEPA gives rise to a cognizable injury from denial of its explanatory process, so long as there is a reasonable risk that environmental harm may occur." City of Los Angeles v. National Highway Traffic Safety Administration, 286 U.S. App. D.C. 78, 912 F.2d 478, 492 (D.C. Cir. 1990). Plaintiffs must further show that their "members have a sufficient geographical nexus to the location at which the environmental consequences are likely to be felt." Id. at 494.

 Here, plaintiffs have alleged that the inadequacies of the LEIS create "a risk that serious environmental impacts will be overlooked", id. (quoting City of Davis v. Coleman, 521 F.2d 661, 671 (9th Cir. 1975)), such as the full impact of the proposed leasing on the Porcupine Caribou herd and the Gwich'in people whose livelihood depends on that species. *fn13" That suffices, for the purpose of a motion to dismiss, to establish injury in fact. Further, the plaintiffs assert that their members "use and enjoy" ANWR. *fn14" There is "no doubt that 'recreational use and aesthetic enjoyment' are among the sorts of interests" that NEPA was specifically meant to protect. Lujan v. National Wildlife Federation, 497 U.S. 871, 111 L. Ed. 2d 695, 110 S. Ct. 3177, 3187 (1990) (emphasis original). The geographical nexus is also obviously met here. The land used by plaintiffs' members is land that will be affected by the LEIS -- the ANWR coastal plain. Cf. id.; see also City of Los Angeles, 912 F.2d at 492-94. See generally Steuer & Juni, Court Access for Environmental Plaintiffs: Standing Doctrine in Lujan v. National Wildlife Federation, 15 Harv. Envtl. L. Rev. 187, 205-18 (1991).

 It is also clear that plaintiffs' participation rights are within the interests protected by the statute. As recognized by this Circuit in Realty Income Trust v. Eckerd, 183 U.S. App. D.C. 426, 564 F.2d 447 (D.C. Cir. 1977), one of the three primary interests protected by environmental impact statements is the "more informed and more effective involvement by the public before the one forum outside of the agency where the decision[] can be influenced." 564 F.2d at 454. If a decision subject to NEPA (such as the recommendation at issue here, as found by the Ninth Circuit) "is made without the information that NEPA seeks to put before the decisionmaker, the harm that NEPA seeks to prevent occurs." Sierra Club v. Marsh, 872 F.2d 497, 497 (1st Cir. 1989). "NEPA's object is to minimize . . . the risk of uninformed choice." Id. at 500. The Court also finds Judge Richey's reasoning in Atchison, Topeka & Santa Fe Railway Co. v. Callaway, 431 F. Supp. 722 (D.D.C. 1977), persuasive and conclusive. He wrote that an LEIS is "intended by Congress to provide detailed environmental information to the public to permit them to participate in a meaningful way in further decisionmaking both at the administrative and legislative levels. In this way, NEPA was intended to ensure that both Congress and the public will be advised of the predicted consequences of the proposed legislation and the alternatives thereto, and they will therefore be able to act responsibly thereon." Id. at 727. That these interests are at stake also disposes of defendants' causation argument, i.e. that it is Congressional action, not the Secretary's, that causes the harm. This is not a situation where the injury is "highly indirect and results from the independent action of some third party not before the court." Allen v. Wright, 468 U.S. 737, 757, 104 S. Ct. 3315, 3328, 82 L. Ed. 2d 556, 54 A.F.T.R.2d (P-H) 5361 (1984) (quoting Simon v. East Kentucky Welfare Rights Organization, 426 U.S. 26, 42, 96 S. Ct. 1917, 2208, 48 L. Ed. 2d 450, 38 A.F.T.R.2d (P-H) 5027 (1976)).

 Plaintiffs have adequately alleged -- and on this motion to dismiss it must be presumed true -- that the inadequacy of the LEIS "presents the risk of overlooking an environmental injury that will personally affect ...

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