Northern Alaska Environmental Center et al v. Trump et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
1 Pursuant to Fed. R. Civ. P. 25(d), the current Alaska State Director for the Bureau of Land
Management (“BLM”), Steven Cohn, is automatically substituted in this matter for his
predecessor, Defendant Thomas Heinlein.
NORTHERN ALASKA ENVIRONMENTAL
CENTER, et al.,
Plaintiffs,
v.
DEBRA HAALAND, in her official capacity
as Secretary of the Interior, et al.,
Defendants,
and
AMBLER METALS LLC, et al.,
Intervenor-Defendants.
Case No. 3:20-cv-00187-SLG
ALATNA VILLAGE COUNCIL, et al.,
Plaintiffs,
v.
STEVEN COHN, in his official capacity as
Alaska State Director for the U.S. Bureau of
Land Management,1 et al.,
Defendants,
and
AMBLER METALS, LLC, et al.,
Intervenor-Defendants.
Case No. 3:20-cv-00253-SLG
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Case No. 3:20-cv-00187-SLG, N. Alaska Env’t Ctr., et al. v. Haaland, et al.
Case No. 3:20-cv-00253-SLG, Alatna Vill. Council, et al. v. Cohn, et al.
Order Re Joint Motion for Clarification
Page 2 of 11
ORDER RE JOINT MOTION FOR CLARIFICATION
Before the Court are Intervenor-Defendants Alaska Industrial Development
and Export Authority (“AIDEA”); NANA Regional Corporation, Inc. (“NANA”), an
Alaska Native Corporation (“ANC”); Ambler Metals, LLC (“Ambler Metals”); and the
State of Alaska’s (the “State”) (collectively, “Intervenor-Defendants”) Joint Motion
for Clarification2 of the Court’s Order Re Motions for Voluntary Remand and Order
Re Motions for Reconsideration (the “Orders”).3 	The motion seeks an order from
this Court that (1) the Orders do not preclude AIDEA from conducting all ground-
disturbing activities; and (2) neither the Orders, the governing statutes, nor the
Programmatic Agreement (“PA”) for the Ambler Access Project (the “Project”)
grant BLM the authority to bar AIDEA’s activities on State and ANC lands.4 	An
amicus brief in support of the motion was filed by Doyon, Limited (“Doyon”), an
ANC.5 	Federal Defendants, Northern Alaska Environmental Center (“NAEC”)
Plaintiffs, and Alatna Village Council (“Alatna”) Plaintiffs all oppose the motion. 6
Oral 	argument 	was 	not 	requested 	and 	was 	not 	necessary 	to 	the 	Court’s
2 NAEC Docket 173; Alatna Docket 172.
3 NAEC Dockets 143, 151; Alatna Dockets 142, 150.
4 NAEC Docket 174 at 1–2; Alatna Docket 172-5 at 1–2.
5 NAEC Docket 177-1; Alatna Docket 175-1.
6 NAEC Dockets 181, 183; Alatna Dockets 179, 183.
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Case No. 3:20-cv-00187-SLG, N. Alaska Env’t Ctr., et al. v. Haaland, et al.
Case No. 3:20-cv-00253-SLG, Alatna Vill. Council, et al. v. Cohn, et al.
Order Re Joint Motion for Clarification
Page 3 of 11
determination. 	For the reasons set forth below, Intervenor-Defendants’ motion is
granted in part and denied in part.
BACKGROUND
NAEC Plaintiffs and Alatna Plaintiffs (collectively, “Plaintiffs”) initiated this
action, which challenges Federal Defendants’ decision to grant AIDEA a right-of-
way (“ROW”) and other authorizations necessary for AIDEA to develop the Ambler
Road, a proposed roadway in north-central Alaska that would connect the Dalton
Highway to the Ambler Mining District in the Brooks Range in Alaska.7 	The
proposed 211-mile road would cross approximately 51 miles of federal lands, 129
miles of State lands, and 32 miles of ANC lands.8 	Plaintiffs assert a broad range
of claims under the Administrative Procedure Act concerning Federal Defendants’
alleged failures to comply with the Alaska National Interest Lands Conservation
Act (“ANILCA”), the National Historic Preservation Act (“NHPA”), the National
Environmental Policy Act (“NEPA”), the Clean Water Act (“CWA”), and the Federal
Land Policy and Management Act (“FLPMA”).9
7 See Alatna Docket 111 at 6–7.
8 See BLM_0006660. “BLM” refers to BLM’s administrative record, which is filed at NAEC
Dockets 36, 51, 66, 75, and 82, and Alatna Dockets 22, 41, 65, and 76.
9 NAEC Docket 45; Alatna Docket 46.
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Case No. 3:20-cv-00187-SLG, N. Alaska Env’t Ctr., et al. v. Haaland, et al.
Case No. 3:20-cv-00253-SLG, Alatna Vill. Council, et al. v. Cohn, et al.
Order Re Joint Motion for Clarification
Page 4 of 11
BLM and the U.S. Army Corps of Engineers (the “Corps”) issued a Joint
Record of Decision (“JROD”) in July 2020, which constituted BLM’s approval under
NEPA and the Corps’ approval under the CWA and the Rivers and Harbors Act to
authorize the Project.10 	BLM and the National Park Service (“NPS”) also jointly
engaged in the NHPA Section 106 process, with BLM serving as the designated
lead agency.11 	This resulted in “a PA and Cultural Resource Management Plan
(CRMP) as an alternative process for implementing Section 106 in a phased
approach.” 12 BLM finalized the PA in April 2020; it was signed then by BLM, NPS,
the State Historic Preservation Officer (“SHPO”), the Advisory Council on Historic
Preservation (“ACHP”), AIDEA, and the Commissioner of the Alaska Department
of Natural Resources; but it was not signed by Doyon or NANA.13 The JROD also
designated the Area of Potential Effects (“APE”) of the Project, which it “delineated
in an extensive series of maps and narrative description in the PA,” establishing
the geographic scope of the PA as the entire Project, including over both State and
ANC lands, along with federal lands, and “including areas within 1 mile of all Project
10 Alatna Docket 111 at 8–9; see also BLM_0016710 (Joint Record of Decision).
11 See BLM_0006673–74 (describing BLM’s NHPA Section 106 consultation efforts).
12 Alatna Docket 111 at 9.
13 Alatna Docket 111 at 10; Docket 179-2 at 32–45; BLM_0101270–83.
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Case No. 3:20-cv-00187-SLG, N. Alaska Env’t Ctr., et al. v. Haaland, et al.
Case No. 3:20-cv-00253-SLG, Alatna Vill. Council, et al. v. Cohn, et al.
Order Re Joint Motion for Clarification
Page 5 of 11
components.” 14 	The PA expressly provides it is “binding on AIDEA as the
Permittee” and further provides that before any work on the Project can proceed
anywhere in the APE, both BLM and the SHPO must approve it; 	NPS must also
approve the work if it is to occur within its jurisdiction.15
Soon after Plaintiffs filed their merits briefing in this litigation, Federal
Defendants moved for a voluntary remand to the agency without vacatur in
February 2022.16 	They explained that “[a]dditional scrutiny in defending the fully
briefed merits of Plaintiffs’ claims” revealed deficiencies in their analysis of impacts
to subsistence uses under ANILCA Section 810, their consultation with Tribes
pursuant 	to 	NHPA 	Section 106, 	and 	the 	Environmental 	Impact 	Statement
analysis.17 On May 17, 2022, this Court granted the motion and ordered voluntary
remand without vacatur in part because it found that doing so was unlikely to result
in prejudice to Plaintiffs since Federal Defendants had suspended the challenged
ROW permits and committed to preserving the environmental status quo over the
entire length of the proposed 211-mile road during remand.18
14 Alatna Docket 183 at 8; BLM_0016726, 0016984–17004.
15 BLM_0101244-45, BLM_010250.
16 NAEC Docket 113; Alatna Docket 111.
17 Alatna Docket 111 at 2, 12–20.
18 NAEC Docket 143 at 14, 18.
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Case No. 3:20-cv-00187-SLG, N. Alaska Env’t Ctr., et al. v. Haaland, et al.
Case No. 3:20-cv-00253-SLG, Alatna Vill. Council, et al. v. Cohn, et al.
Order Re Joint Motion for Clarification
Page 6 of 11
Previously in this litigation, Intervenor-Defendants recognized the validity of
the PA and its applicability to the entire 211-mile APE. 	For example, in its
opposition to the voluntary remand, the State asserted, “Notably, the PA would
apply to cultural resource impacts resulting from all project activities, regardless of
landownership, i.e., the entire 200-mile corridor would be included.”19 	NANA
adopted a resolution in support of the JROD on February 17, 2022, in which it
expressed 	its 	support 	for 	both 	the 	JROD 	and 	the 	PA, 	acknowledging 	the
importance of the documents “to ensure protections for subsistence activities and
resources are in place throughout the Project.”20 AIDEA recognized and supported
the PA’s application to the entire length of the proposed road, asserting that
Plaintiffs would not be harmed if the matter were remanded without vacatur
because Federal Defendants had already suspended the ROW grants and, in
doing so, had expressly stated in each suspension that “AIDEA may not conduct
any activities that rely on the authority of the ROW grant.”21 And the federal ROW
grants required AIDEA to comply with the PA.22 In Ambler Metals’ response to the
motion for voluntary remand, it asserted that vacatur was unnecessary on remand
19 Alatna Docket 124 at 20–21.
20 Alatna Docket 127-1 at 4.
21 Alatna Docket 126 at 15 (citations omitted).
22 See, e.g., BLM_0102522.
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Case No. 3:20-cv-00187-SLG, N. Alaska Env’t Ctr., et al. v. Haaland, et al.
Case No. 3:20-cv-00253-SLG, Alatna Vill. Council, et al. v. Cohn, et al.
Order Re Joint Motion for Clarification
Page 7 of 11
because 	“the 	environmental, 	cultural, 	and 	subsistence 	interests 	upon 	which
Plaintiffs’ standing is based will not be harmed” since the ROW grants had been
suspended, thus implicitly acknowledging that there would be no ground-disturbing
activities over the full 211-mile route absent federal authorization of such activities
while the case was on remand. 23
Plaintiffs filed motions for reconsideration of the order granting remand
without vacatur, contending that they would be prejudiced by a remand without
vacatur because “on-the-ground activities in furtherance of the Ambler Road
[would] move forward.”24
In response, Federal Defendants maintained that “Plaintiffs improperly
[sought] to relitigate the purported risk that [AIDEA] will proceed with ground-
disturbing activity on nonfederal lands.”25 	Federal Defendants added, “BLM has
further advised AIDEA of the ongoing requirements of the PA, including on
nonfederal lands, and that undertaking any portion of the 2022 proposed work plan
without approval would constitute a violation of the PA.”26
23 Alatna Docket 125 at 12 (citations omitted).
24 NAEC Docket 145 at 2.
25 NAEC Docket 149 at 3.
26 NAEC Docket 149 at 4 (citation omitted).
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Case No. 3:20-cv-00187-SLG, N. Alaska Env’t Ctr., et al. v. Haaland, et al.
Case No. 3:20-cv-00253-SLG, Alatna Vill. Council, et al. v. Cohn, et al.
Order Re Joint Motion for Clarification
Page 8 of 11
For their part, Intervenor-Defendants also opposed reconsideration of the
remand 	without 	vacatur.27 	In 	a 	declaration 	appended 	to 	the 	Intervenor-
Defendants’ joint opposition, AIDEA’s Infrastructure Development Senior Finance
Officer for the Project acknowledged that BLM was asserting it had the authority
to withhold approval of activities over the entire length of the Project, including on
nonfederal lands, while the remand was pending.28
On June 14, 2022, the Court denied Plaintiffs’ motions for reconsideration
with regard to the remand without vacatur.29 	But the Court added two notification
provisions: One provision required BLM and NPS to give prompt notice to Plaintiffs
regarding any applications and authorizations for activities on federal lands related
to the Ambler Road; the second required 28 days’ notice to Plaintiffs in advance of
any ground-disturbing activities “occurring pursuant to the [CWA] 404 permit or
other authorizations, except no notice is required to proceed with limited brush
clearing solely to allow for helicopter landings.”30
27 NAEC Docket 150 at 2.
28 See NAEC Docket 150-1 at 3, ¶ 9 (“To the extent that there is a dispute between BLM and
the relevant surface owner regarding authorization for AIDEA to conduct a given activity, AIDEA
is working with the parties to resolve the dispute and obtain appropriate authorization to conduct
the activity in question.”); see also NAEC Docket 150 at 6 (“The 2022 field work for the most
part will not be ground-disturbing, and will proceed only if AIDEA receives written permit
approval from each of the appropriate authorities and landowners.” (citation omitted)).
29 NAEC Docket 151; Alatna Docket 150.
30 NAEC Docket 151 at 12; Alatna Docket 150 at 12.
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Case No. 3:20-cv-00187-SLG, N. Alaska Env’t Ctr., et al. v. Haaland, et al.
Case No. 3:20-cv-00253-SLG, Alatna Vill. Council, et al. v. Cohn, et al.
Order Re Joint Motion for Clarification
Page 9 of 11
On January 19, 2023, Intervenor-Defendants filed the instant motions for
clarification, requesting the Court issue an order stating that (1) the Court’s prior
Orders do not preclude AIDEA from conducting all ground-disturbing activities; and
(2) neither the Court’s prior Orders, the governing statutes, nor the PA grant BLM
the authority to bar activities on State and ANC lands. 31
LEGAL STANDARD
While there is no specific Federal Rule of Civil Procedure governing motions
for clarification, such motions have been made and, when appropriate, granted.
“The general purpose of a motion for clarification is to explain or clarify something
ambiguous or vague, not to alter or amend.”32 	Motions for clarification are
appropriate when parties “are uncertain about the scope of a ruling” or when the
ruling is “reasonably susceptible to differing interpretations.”33
DISCUSSION
The Court clarifies its Order Re Motions for Reconsideration to specify that
the second notice provision regarding ground-disturbing activities extends to the
31 NAEC Docket 174 at 1–2.
32 United States v. All Assets Held at Bank Julius, Baer & Co., 315 F. Supp. 3d 90, 99 (D.D.C.
2018) (citation omitted).
33 Id. at 99–100 (citations omitted).
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Case No. 3:20-cv-00187-SLG, N. Alaska Env’t Ctr., et al. v. Haaland, et al.
Case No. 3:20-cv-00253-SLG, Alatna Vill. Council, et al. v. Cohn, et al.
Order Re Joint Motion for Clarification
Page 10 of 11
entire APE.34 	This is because the PA applies to the entire 211-mile Project area,
including AIDEA’s activities on State and ANC lands. The Court also makes clear
the Orders themselves do not preclude AIDEA from conducting ground-breaking
activities in the APE. To the extent Intervenor-Defendants’ motion seeks relief far
broader than a motion to clarify—to restrict the scope of the PA to federal lands
only—the Court will not consider such a request in a motion to clarify.
Because 	the 	Court 	granted 	Federal 	Defendants’ 	motion 	for 	voluntary
remand without vacatur, all of the challenged agency decisions remain in place.
This includes the PA. 	The PA unambiguously extends to the entire proposed
Ambler Road and “areas within 1 mile of all Project components.”35 While the PA
does not bind Doyon or NANA because they are not signatories to that agreement,
it does bind AIDEA as a signatory, including with respect to AIDEA’s activities on
both the State’s lands and the ANCs’ lands.36
A challenge to the scope of the PA is not properly brought through a motion
for clarification. 	The PA itself provides the means to resolve disputes, make
34 See NAEC Docket 151; Alatna Docket 150.
35 See BLM_0016726.
36 The Court notes Doyon’s concerns that requirements in the PA limit AIDEA’s field work
activities on ANC lands. NAEC Docket 177-1 at 4–7. The PA does restrict AIDEA’s activities
along the planned road corridor, including through ANC lands. It does not otherwise restrict the
ANCs’ use of their lands.
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Case No. 3:20-cv-00187-SLG, N. Alaska Env’t Ctr., et al. v. Haaland, et al.
Case No. 3:20-cv-00253-SLG, Alatna Vill. Council, et al. v. Cohn, et al.
Order Re Joint Motion for Clarification
Page 11 of 11
amendments or addenda, or terminate the agreement.37 	Intervenor-Defendants
might also bring a legal challenge to the scope of the PA, but not in the guise of a
motion for clarification of the Court’s prior Orders.
CONCLUSION
In light of the foregoing, Intervenor-Defendants’ Joint Motion for Clarification
at NAEC Docket 173 and Alatna Docket 172 is GRANTED insofar as the Court
clarifies the Orders as follows: (1) The Orders themselves do not preclude AIDEA
from conducting ground-breaking activities; and (2) the 28-day advance notice
requirement for ground-breaking activities set forth in the Order Re Motions for
Reconsideration extends to the entire 211-mile APE. 	The motion is otherwise
DENIED.
DATED this 25th day of May, 2023 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
37 BLM_0016961–62.
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