Native Village of Nuiqsut et al v. Bureau of Land Management et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
NATIVE VILLAGE OF NUIQSUT, et
al.,
Plaintiffs,
v.
BUREAU OF LAND
MANAGEMENT, et al.,
Defendants,
and
CONOCOPHILLIPS ALASKA, INC.,
Intervenor-Defendant.
Case No. 3:19-cv-00056-SLG
DECISION AND ORDER
This is an action in which Plaintiffs, comprised of Native Village of Nuiqsut,
Alaska Wilderness League, Center for Biological Diversity, Friends of the Earth,
Natural Resources Defense Council, and Sierra Club, seek the invalidation of the
Bureau of Land Management’s approval of the 2018-2019 winter exploration
activity undertaken by ConocoPhillips Alaska, Inc. in the National Petroleum
Reserve-Alaska.1 For the reasons set forth herein, Plaintiffs’ requested relief is
denied.
1 Pursuant to the briefing schedule for administrative agency appeals, see L. R. Civ. P. 16.3(c),
Plaintiffs’ Opening Brief is at 27; Defendants Bureau of Land Management, David Bernhardt, Ted
Murphy, and Nichelle Jones’ (“Federal Defendants”) Brief in Opposition is at Docket 30;
Intervenor-Defendant ConocoPhillips’ Brief in Opposition is at Docket 31; and Plaintiffs’ Reply
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 1 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 2 of 73
BACKGROUND
The National Petroleum Reserve-Alaska (“NPR-A”), on Alaska’s North
Slope, consists of 23.6 million acres and is the nation’s largest single unit of public
land.2 Established as the Naval Petroleum Reserve in 1923, the NPR-A was
renamed and placed under the authority of the Secretary of the Interior in 1976 by
the National Petroleum Reserve Protection Act (“NPRPA”), 42 U.S.C. § 6501 et
seq.3 In 1980, the NPRPA was amended to direct the Secretary of the Interior to
“conduct an expeditious program of competitive leasing of oil and gas in the
Reserve.”4
The NPRPA provides that exploration within designated areas “containing
any significant subsistence, recreational, fish and wildlife, or historical or scenic
value, shall be conducted in a manner which will assure the maximum protection
of such surface values to the extent consistent with the requirements of this Act for
the exploration of the reserve.”5 The Teshekpuk Lake Special Area—an
approximately 1.7 million-acre area containing “Teshekpuk Lake and its
Brief is at Docket 33. Oral argument was held on September 20, 2019. Plaintiffs’ Motion to Take
Judicial Notice of Supplemental Factual Materials is also before the Court at Docket 44.
2 N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 973 (9th Cir. 2006).
3 Id.
4 42 U.S.C. § 6506a(a).
5 42 U.S.C. § 6504(a).
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 2 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 3 of 73
watershed”—is one such designated area.6 This area “includes important nesting,
staging, and molting habitat for a large number of waterfowl and shorebirds and
critical Teshekpuk Caribou Herd caribou calving, migration, and insect-relief
habitat.”7
In 1994, the discovery of a large oil field on state land near the eastern
border of the NPR-A spurred “renewed interest in leasing in the Reserve.”8
Additional discoveries in the northeastern portion of the NPR-A led to the creation
of the Greater Mooses Tooth (“GMT”) and the Bear Tooth exploratory units.9
Between 2000 and 2012, operators drilled 29 exploration wells in the NPR-A.10
Fifteen of these wells were drilled in the GMT unit and one was drilled in the Bear
Tooth unit.11
In 2012, the Bureau of Land Management (“BLM”) published a final
integrated activity plan (“IAP”) and supporting environmental impact statement
(“EIS”) (together the “2012 IAP/EIS”) to govern its management of “all BLM-
6 42 U.S.C. § 6504(a); National Petroleum Reserve in Alaska Designation of Special Areas, 42
Fed. Reg. 28,723 (June 3, 1977). An additional 10,000 acres were added to the Teshekpuk Lake
Special Area in 1999. AR0369 (2012 Final Integrated Activity Plan/Final Environmental Impact
Statement).
7 AR0369.
8 AR0542.
9 AR0542. The GMT unit comprises 164,014 acres, and the Bear Tooth unit comprises 105,475
acres. Id.
10 AR0542.
11 AR0542.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 3 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 4 of 73
managed lands in the [NPR-A].”12 The subsequent Record of Decision (“ROD”)
adopted Alternative B-2 of the IAP/EIS, which made 11.8 million acres—or 52%—
of the NPR-A available for oil and gas leasing.13 It kept much of the Teshekpuk
Lake Special Area closed to leasing.14 However, it made “lands in the eastern-
most part of [that area] available for oil and gas leasing” because they “include or
are close to existing leases, including those with oil discoveries in the [GMT] Unit
. . . [and] offer the greatest promise for oil and gas development.”15 The ROD also
adopted a series of lease stipulations and best management practices (“BMPs”),
which are mitigation measures “required, implemented, and enforced at the
operational level for all authorized (not just oil and gas) activities in the planning
area.”16
Previously, in 2004, BLM had prepared an EIS and approved
ConocoPhillips’ proposal to expand its existing operations on state land by
constructing satellite drill pads in the NPR-A.17 Two of these pads—GMT1 and
12 AR0005. Previous planning documents had only dealt with certain regions of the NPR-A, not
the area as a whole. See AR0006–07 (describing earlier plans).
13 AR2642.
14 AR2650–51.
15 AR2650–51. The Record of Decision recognized that areas made available for leasing within
the Teshekpuk Lake Special Area have “valuable waterfowl and caribou habitat,” but concluded
that opening them to drilling “constitute[d] a proper balancing of BLM’s management
responsibilities for [the] NPR-A.” Id.
16 AR2669.
17 AR4534.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 4 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 5 of 73
GMT2—lie within the GMT unit.18 In October 2014, BLM completed a
supplemental EIS to analyze revisions that ConocoPhillips had made to its plan for
the development of the GMT1 drill pad.19 The agency approved the revised plan
for that drill pad in a February, 2015 ROD.20 BLM approved revisions to
ConocoPhillips’ development plan for the GMT2 drill pad through a similar process,
completing a supplemental EIS in August 2018 and issuing a ROD approving the
revisions in October, 2018.21
In 2013, 2015, 2017, and 2018, BLM approved a series of winter exploratory
drilling programs within the NPR-A, which included the construction of wells and
associated access route corridors and water supply.22 Each of these programs
was approved after BLM completed an Environmental Assessment (“EA”) and
made a finding of no significant impact (“FONSI”) or a finding of no new significant
impact (“FONNSI”) beyond those already considered in previous EISs.23
18 AR4534.
19 AR2739.
20 AR4406.
21 AR4516 (SEIS); AR6542 (ROD).
22 AR8550–52.
23 AR8550–52. Pursuant to Department of Interior regulations, “[a] finding of no significant impact
other than those already disclosed and analyzed in the environmental impact statement to which
the environmental assessment is tiered may also be called a ‘finding of no new significant impact.’”
43 C.F.R. § 46.140(c).
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 5 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 6 of 73
In August, 2018, ConocoPhillips completed an Exploration and Appraisal
Program describing activities it planned to conduct during the 2018-2019 winter
season to “explore and appraise oil and gas potential on” leases it owned within
the NPR-A.24 The proposed exploration would occur to the west of Nuiqsut and
the GMT1 and GMT2 projects, in the Bear Tooth unit near the confluence of Fish
and Judy Creeks.25 In support of its exploration plan, ConocoPhillips submitted to
BLM in October 2018 an application for a right-of-way grant,26 requests to deviate
from several of the 2012 IAP/EIS BMPs,27 and applications for permits to drill up
to six exploration wells in or near the Bear Tooth unit.28
BLM released a preliminary EA analyzing ConocoPhillips’ proposed
operations on November 9, 2018.29 After the requisite public comment period had
closed, the agency published a final EA on December 6, 2018 (“2018 EA”), which
proposed approving ConocoPhillips’ various applications and requests.30 The
2018 EA tiered to the 2012 IAP/EIS and the supplemental EISs for the GMT1 and
24 AR6939–59.
25 See AR8475 (map showing winter exploration project area).
26 AR6960.
27 AR7795; AR7797; AR7802.
28 AR7807–25; AR7831–7999
29 AR8596.
30 AR8467; AR8482–95 (describing proposed action alternative).
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 6 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 7 of 73
GMT2 drill pads.31 BLM then issued a FONNSI,32 and released a ROD that, among
other things, authorized ConocoPhillips to conduct exploration drilling and testing
at up to eight well sites and build associated infrastructure, including up to 57 miles
of ice roads, 42.7 miles of snow trails, 23 ice pads, an air strip, and temporary
housing for its employees during the 2018-2019 winter season.33 ConocoPhillips
fully completed the operations authorized by the ROD on April 28, 2019.34
Several other projects occurred in the northeast of the NPR-A during the
2018-2019 winter season as well. The largest of these was construction of the
road and drill pad for the GMT2 development.35 ConocoPhillips also obtained
authorization to engage in geotechnical exploration in the area, in order to locate
“potential gravel resources” to “support[] oil and gas development in the Bear Tooth
Unit.”36 This exploration program consisted of drilling up “up to 125 onshore
boreholes” and “up to 40 nearshore boreholes” in search of gravel.37 The majority
31 AR8477; see also 40 C.F.R. § 1508.28 (defining tiered environmental review and describing
when it is appropriate).
32 AR8588.
33 AR8595, AR8597.
34 Docket 32 at 3, ¶ 5 (Decl. of Lorna K. Richmond).
35 AR8503 (concluding that “GMT2 construction activity is anticipated to present the most
prominent immediate impacts for the community because the gravel is mined east of town then
hauled with large trucks over an ice road to the GMT2 area west of town”); see AR4573–75
(describing road and drill pad construction during first three years of GMT2 development).
36 AR8691. BLM approved the geotechnical exploration program after completing an EA, AR8684,
and a FONNSI. AR8743.
37 AR8691.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 7 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 8 of 73
of the onshore borehole drilling occurred in the vicinity of the GMT1 and GMT2
projects, with a smaller number of boreholes drilled in the area of ConocoPhillips’
2018-2019 winter exploration.38 The nearshore borehole drilling occurred several
miles north, off Atigaru Point.39 ConocoPhillips’ winter exploration and
geotechnical survey both supported the company’s plan to develop the Willow
prospect, for which BLM is preparing an EIS.40
Nuiqsut is a predominantly Alaska Native community of nearly 500 people
located on the eastern border of the NPR-A.41 In recent decades, several oil and
gas development projects have been undertaken near Nuiqsut, which is “situated
closer to current and foreseeable areas of petroleum development than any other
community on the North Slope.”42 This development has created conflicts with the
community’s traditional ways of life. A comment from the North Slope Borough on
the GMT2 SEIS explained:
Nuiqsut residents, more so than residents of other North Slope
communities, and perhaps more so than any other Alaskan residents,
have lived with a decades-long, ever-increasing, near constant level
of frustration and apprehension as expanding oil and gas facilities and
38 AR8693 (map showing location of onshore geotechnical survey).
39 AR8694.
40 AR5021 n.b.
41 AR0417 (Nuiqsut lies “about 35 miles south of the Beaufort Sea coast on the Niġlik channel of
the Colville River in the Colville River Delta”); AR8505 (“[T]he population of Nuiqsut . . . is
predominantly Inupiaq.”); see also AR2540 (map).
42 AR0420.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 8 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 9 of 73
operations have impinged upon their traditional onshore and offshore
subsistence harvest areas.43
Many of ConocoPhillips’ activities during the winter of 2018-2019 occurred
in the general vicinity of Nuiqsut. The ice road construction and drilling associated
with the winter exploration program occurred largely 25 miles or more to the west
of the community.44 The GMT2 development is closer to Nuiqsut; the drill pad site
“lies approximately 16.5 miles west of Nuiqsut,” and connects to the GMT1 drill site
by an access road extending towards the northwest.45 Maps showing the locations
of development relative to Nuiqsut are included in an appendix to this decision.46
The Native Village of Nuiqsut47 and several non-profit organizations initiated
this action on March 1, 2019, claiming that BLM’s environmental analysis of
ConocoPhillips’ 2018-2019 winter exploration plan was deficient in several ways,
and seeking declaratory and injunctive relief.48 Plaintiffs filed an Amended
Complaint on March 26, 2019, which contained five claims for relief:
43 AR5065. “Subsistence Activities are important components of the Nuiqsut economy and of
local Iñupiaq culture and identity.” AR0420. The GMT2 SEIS reports that caribou make up, on
average, 30 percent of Nuiqsut’s subsistence harvest, and the average per capita caribou harvest
is 157 pounds. AR4725; AR4752.
44 See AR8504 (“Most of the ice roads for the proposed exploration project are located more than
25 miles from Nuiqsut.”); AR8474 (map showing winter exploration project area).
45 AR4598; see also AR5177 (map showing proposed GMT2 development).
46 See Docket 46-1.
47 The Native Village of Nuiqsut “is [a] Federally Recognized Tribal Government” that “is
responsible for over 400 tribal members” residing in Nuiqsut. Docket 5 at 5, ¶ 9.
48 Docket 1.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 9 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 10 of 73
(1) That BLM’s FONNSI for the winter exploration program, and its
associated decision not to prepare an EIS, failed to account for significant impacts
to the Teshekpuk Caribou Herd and subsistence activity and was thus in violation
of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332(2)(C), and
the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2);49
(2) That BLM’s FONNSI, and associated decision not to prepare an EIS,
failed to consider the cumulative impacts of the winter exploration program, and
thus violated NEPA, 42 U.S.C. § 4332(2)(C), and the APA, 5 U.S.C. § 706(2);50
(3) That “BLM’s failure to consider the winter exploration program and
geotechnical exploration program together in a single EIS” violated NEPA, 42
U.S.C. § 4332(2)(C), its implementing regulations, 40 C.F.R. § 1508.25, and the
APA, 5 U.S.C. 706(2);51
(4) That BLM failed to consider appropriate alternatives to ConocoPhillips’
proposed winter exploration plan, in violation of NEPA, 42 U.S.C. § 4332(2)(C), its
implementing regulations, 40 C.F.R. §§ 1507.2(d), 1508.9(b), and the APA, 5
U.S.C. §§ 702, 706;52 and
49 Docket 5 at 22–23, ¶¶ 87–88.
50 Docket 5 at 24–25, ¶¶ 98–99.
51 Docket 5 at 25, ¶ 103.
52 Docket 5 at 26, ¶ 107.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 10 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 11 of 73
(5) That BLM failed to consider alternatives to the winter exploration plan
that would reduce the impact to subsistence uses of the affected areas, in violation
of the Alaska National Interest Lands Conservation Act (“ANILCA”), 16 U.S.C. §
3120(a), and the APA, 5 U.S.C. §§ 702, 706.53
The Amended Complaint requested declaratory relief, an order vacating the
ROD for the 2018-2019 winter exploration, and an injunction prohibiting “further
exploration activities in the [Petroleum] Reserve until BLM has complied with the
requirements of NEPA and ANILCA.”54 However, in their briefing on the merits,
Plaintiffs seek only declaratory relief and vacatur.55
The Court granted ConocoPhillips’ Motion to Intervene on April 10, 2019,56
and the company answered the Amended Complaint on April 12, 2019.57 Federal
Defendants filed their answer on May 6, 2019.58 Plaintiffs filed their opening brief
on the merits on May 23, 2019.59
53 Docket 5 at 27, ¶ 111.
54 Docket 5 at 27.
55 Docket 27 at 42–43.
56 Docket 15.
57 Docket 17.
58 Docket 25.
59 Docket 27; see also L. R. Civ. P. 16.3(c) (establishing briefing schedule for administrative
appeals).
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 11 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 12 of 73
JURISDICTION
“It is an inexorable command of the United States Constitution that the
federal courts confine themselves to deciding actual cases and controversies.”60
This case-or-controversy requirement “underpins both . . . standing
and . . . mootness jurisprudence.”61 Standing and mootness are related, but
distinct legal concepts.62 The standing inquiry asks whether a case or controversy
existed at the time a complaint was filed;63 the mootness inquiry asks whether that
case or controversy “persist[s] throughout all stages of the litigation.”64
ConocoPhillips argues that Plaintiffs do not have standing to challenge the
EA for the 2018-19 winter exploration,65 and Federal Defendants and
60 Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1128 (9th Cir. 2005) (citing U.S. Const. art.
III, § 2).
61 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000).
62 Id. at 189–93 (discussing difference between mootness and standing).
63 See e.g., Civil Rights Educ. & Enf’t Ctr. v. Hosp. Props. Trust, 867 F.3d 1093, 1102 (9th Cir.
2017) (recognizing the “general rule that standing is determined ‘at the time the action
commences’” (quoting Friends of the Earth, Inc., 528 U.S. at 191)).
64 Gator.com Corp., 398 F.3d at 1128–29 (citing Steffel v. Thompson, 415 U.S. 452, 459 n.10
(1974)); see also Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 71–72 (2013) (“A corollary
to th[e] case-or-controversy requirement is that ‘an actual controversy must be extant at all stages
of review, not merely at the time the complaint is filed.” (quoting Arizonans for Official English v.
Arizona, 520 U.S. 43, 67 (1997)).
65 Docket 31 at 18–25.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 12 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 13 of 73
ConocoPhillips both argue that Plaintiffs’ claims are moot.66 The Court will address
these two arguments separately, beginning with standing.67
I. Standing
To establish Article III standing, a plaintiff “must have (1) suffered an injury
in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and
(3) that is likely to be redressed by a favorable judicial decision.”68 At the summary
judgment stage, plaintiffs must submit evidence, such as affidavits, showing that
each of these elements is met through specific facts.69 Plaintiffs submitted nine
declarations from their members in an effort to carry this burden.70
ConocoPhillips contends that Plaintiffs have failed to establish each of these
three elements.71 ConocoPhillips’ briefing relies heavily on the fact that the winter
exploration program challenged by Plaintiffs had concluded by the time they filed
66 Docket 30 at 14–20; Docket 31 at 16–18 (agreeing with and adopting Federal Defendants’
mootness argument).
67 See Friends of the Earth, Inc., 528 U.S. at 180 (addressing standing and mootness separately
and beginning by asking whether plaintiffs “had Article III standing at the outset of the litigation”);
Bernhardt v. Cty. of Los Angeles, 279 F.3d 862, 868 (9th Cir. 2002) (“We examine whether
Bernhardt had standing at the time the lawsuit was filed, and separately consider whether her
case has become moot.”).
68 Spokeo, Inc. v. Robins, ___ U.S. ___, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992)).
69 Lujan v. Defs. of Wildlife, 504 U.S. 555, 563 (1992). The Court considers summary judgment
to be analogous to the administrative agency appeal process established by Local Rule 16.3.
70 Docket 27-1–27-9.
71 Docket 31 at 18–19.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 13 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 14 of 73
their opening brief.72 However, ConocoPhillips’ arguments about the timing of the
challenges to its winter exploration are more relevant to the question of mootness,
which is discussed separately below.73 As explained above, the standing inquiry
focuses on the plaintiff’s position at the time the operative complaint was filed;
consistent with the “general rule that standing is determined ‘at the time the action
commences.’”74 The Court will thus consider whether Plaintiffs established that
each of the standing elements existed at the time the Amended Complaint was
filed, in March, 2019, when exploration activities were ongoing.75
A. Injury-in-Fact
The injury-in-fact element requires Plaintiffs to show that they have suffered
an injury that is “(a) concrete and particularized and (b) actual or imminent, not
72 See, e.g., Docket 31 at 19 (“The primary flaw with Plaintiffs’ declarations is that by the time
Plaintiffs moved for summary judgment, the 2018-19 Program was already completed.” (emphasis
in original)).
73 See Friends of the Earth, Inc., 528 U.S. at 189–93 (discussing difference between mootness
and standing and noting that “confusion [between the two] is understandable”).
74 Civil Rights Educ. & Enf’t Ctr. v. Hosp. Props. Trust, 867 F.3d 1093, 1102 (9th Cir. 2017) (quoting
Friends of the Earth, Inc., 528 U.S. at 191); see also Friends of the Earth, 528 U.S. at 178, 184
(concluding that plaintiffs retained standing despite defendant’s cessation of challenged activity
because “it is undisputed that Laidlaw’s unlawful conduct—discharging pollutants in excess of
permit limits—was occurring at the time the complaint was filed.” (emphasis added)); Nat. Law
Party of U.S. v. Fed. Elec. Comm’n, 111 F. Supp. 2d 33, 41 (D.D.C. 2000) (“Standing is based
upon the facts as they exist at the time the complaint is filed . . . .”).
75 Northstar Fin. Advisors Inc. v. Schwab Investments, 779 F.3d 1036, 1044 (9th Cir. 2015) (“[T]he
proper focus in determining jurisdiction are ‘the facts existing at the time the complaint under
consideration was filed’.” (quoting Prasco, LLC v. Medicis Pharm. Corp., 537 F.3d 1329, 1337
(Fed. Cir. 2008) (emphasis in original))). Here, it is the Amended Complaint that is complaint
under consideration.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 14 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 15 of 73
conjectural or hypothetical.”76 If “plaintiffs seek declaratory and injunctive relief
only,” as here, “there is a further requirement that they show a very significant
possibility of future harm.”77
The Native Village of Nuiqsut satisfied this burden through the declarations
of its tribal members. For example, Martha Itta, the Tribal Administrator for the
Native Village of Nuiqsut,78 stated that “[ConocoPhillips’] exploration activities and
other oil activities in the region affect every aspect of our lives[;] . . . [t]here is 24-7
never-ending traffic during ice road season, nonstop noise pollution.”79 And the
EA itself recognized that the winter exploration’s “[p]roximity to the community [of
Nuiqsut] is a key concern for residents, particularly in terms of air quality and
noise.”80 It explained that while the planned winter exploration activities “would not
easily be discernible” from other oil and gas development projects in the area,
residents “will generally be aware of the unprecedented scale and extent of activity
76 Friends of the Earth, Inc., 528 U.S. at 180 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–
61 (1992)).
77 San Diego Cty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996) (citing Bras v.
Cal. Pub. Util. Comm’n, 59 F.3d 869, 873 (9th Cir. 1995), cert. denied, 516 U.S. 1084 (1996)).
78 Docket 27-1 at 1, ¶ 1.
79 Docket 27-1 at 3–4, ¶ 8; see also Docket 27-2 at 18, ¶ 31 (Decl. of Rosemary Ahtuangaruak)
(“[O]ur village is now completely surrounded by lights from the oil and gas infrastructure. . . .
These artificial lights are confusing our people.”).
80 AR8504.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 15 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 16 of 73
on the west side [of Nuiqsut] this season.”81 Noise and light pollution are concrete
injuries sufficient to establish injury-in-fact.82
Further, tribal members described in their declarations a fear that
ConocoPhillips’ winter exploration activities would interfere with subsistence uses
of the affected area. For example, Tribal Administrator Itta stated that “[t]he area
where [ConocoPhillips] conducts its current winter exploration activities is . . .
where [tribal members] fish and hunt,” but that she has not been “able to utilize
[her] family’s traditional camps [in the Teshekpuk Lake area] due to infrastructure
and the animals no longer going to those areas.”83 The EA also recognizes these
concerns, stating that the winter exploration “would . . . encompass a large area
around Fish Creek, which is an important area for wintertime caribou hunting,” on
which “Nuiqsut residents place extreme value.”84 It recognized that “[t]he proposed
action is anticipated to deflect caribou and furbearers from the area” and that
81 AR8504.
82 See, e.g., Sierra Club v. U.S. Army Corps of Eng’rs, 645 F.3d 978, 987–88 (8th Cir. 2011)
(holding member’s declaration that project’s “light and noise pollution threatened his aesthetic
enjoyment of the area” sufficient to establish injury-in-fact).
83 Docket 27-1 at 2–3, 6, ¶¶ 7, 15. Rosemary Ahtuangaruak, another tribal member, stated that
she can no longer use her family’s hunting cabin, which is “across the river from where the Alpine
oilfield was built,” to hunt caribou due to disturbance from industrial activity and that she was
concerned that “disturbances to nesting grounds from oil and gas activities are also affecting the
density of birds in our traditional hunting grounds.” Docket 27-2 at 5, ¶ 9.
84 AR8497.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 16 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 17 of 73
“[s]ubsistence hunters would likely avoid the area.”85 Accordingly, the Court finds
that the Native Village of Nuiqsut has established injury-in-fact.
Members of at least some of the plaintiff environmental organizations,
through their declarations, also identified concrete and imminent harm they feared
they would suffer as a result of ConocoPhillips’ winter exploration. The Supreme
Court has held that “environmental plaintiffs adequately allege injury-in-fact when
they aver that they use the affected area and are persons ‘for whom the aesthetic
and recreational values of the area will be lessened’ by the challenged activity.”86
For example, Jeffrey Scott Fair, a member of the NRDC, is a wildlife biologist
who has researched yellow-billed loons in the area of ConocoPhillips’ 2018-2019
winter exploration.87 He describes his concern that ice-road construction during
the exploration season could harm loons directly by artificially lowering the water
level of the lakes by which they nest in the spring: the loons “need to nest right at
the water line,” but “[g]iven the likelihood that these lakes would refill later in the
early nesting season (from their unnatural drawdowns), rising waters would flood
and kill the loon nests.”88 Mr. Fair states that he plans to revisit loon sites “for
comparison and follow-up” and that he is currently “awaiting acceptance and
85 AR8497.
86 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183 (2000) (quoting
Sierra Club v. Morton, 405 U.S. 727, 735 (1972)).
87 Docket 27-7 at 2, 7, ¶¶ 4, 20.
88 Docket 27-7 at 8–9, ¶ 23.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 17 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 18 of 73
funding for a red-throated loon study . . ., potentially including areas within
approximately 20 miles of the exploration area” as early as summer, 2020.89
Dan Ritzman, a member of both the Sierra Club and Alaska Wilderness
League,90 stated that he had plans to float “portions of the Nigu, Etivlik and Colville
rivers” in the summer of 2020,91 but feared that “noise impacts from exploration
drilling, development, and production activities will drive away wildlife from . . . the
critical areas around Teshekpuk Lake,” and thus “significantly decrease or
completely erase [his] opportunity to enjoy wildlife viewing” on his upcoming trip.92
ConocoPhillips maintains that Plaintiffs’ declarations are deficient and do not
show impending harm because “they surmise about effects that they believe could
occur—despite the fact that the declarations were submitted after the program
89 Docket 27-7 at 9, ¶ 24. Cf. Lujan v. Defs. of Wildlife, 504 U.S. 555, 564 (1992) (holding that
vague statements of intent to revisit areas of interest cannot show injury-in-fact because “[s]uch
‘some day’ intentions—without any description of concrete plans, or indeed even any specification
of when the some day will be—do not support a finding of the ‘actual or imminent’ injury that our
cases require” (emphasis in original)).
90 Docket 27-9 at 2, ¶ 3.
91 Docket 27-9 at 12, ¶ 33.
92 Docket 27-9 at 14, ¶ 37. The Court construes Mr. Ritzman’s declaration broadly to assert that
disturbances to wildlife from ConocoPhillips’ 2018-2019 winter exploration program will last long
enough to negatively impact his summer 2020 river trip. However, the remaining plaintiff
environmental organizations—Center for Biological Diversity and Friends of the Earth—have
failed to provide declarations from their members identifying particular injuries they expect to stem
from the particular exploration program at issue in this case. They instead largely focus on the
impacts of oil and gas development in the NPR-A generally, giving little attention to
ConocoPhillips’ 2018-2019 winter exploration activities. See, e.g., Docket 27-4 (Decl. of Richard
G. Steiner, member, Center for Biological Diversity); Docket 27-6 (Decl. of Marcelin E. Keever,
Legal Director, Friends of the Earth). The Court finds, therefore, that the Center for Biological
Diversity and Friends of the Earth have failed to allege a concrete and particularized injury in fact
and dismisses these plaintiffs for lack of standing.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 18 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 19 of 73
completed—and identify no harms that actually occurred.”93 ConocoPhillips
mischaracterizes Plaintiffs’ burden; as explained above, the standing inquiry
focuses on Plaintiffs’ position at the filing of the Amended Complaint, not the filing
of their opening brief on the merits.94 Viewed through this lens, the above quoted
declarations filed with Plaintiffs’ briefing demonstrate that members of at least
some plaintiff organizations had articulated sufficiently specific concerns about
how the winter exploration would “affect [their] recreational, aesthetic, and
economic interests.” 95
For the foregoing reasons, the Native Village of Nuiqsut, NRDC, Sierra Club,
and Alaska Wilderness League have met their burden to show a concrete,
imminent injury-in-fact. The Court finds that the Friends of the Earth and the
Center for Biological Diversity have not met this burden, however, and dismisses
them from the case.
B. Causation
ConocoPhillips maintains that “[t]he completed 2018-19 Program either
caused harm to Plaintiffs or did not,” and contends that “Plaintiffs have presented
93 Docket 31 at 21–22.
94 Civil Rights Educ. & Enf’t Ctr. v. Hosp. Props. Trust, 867 F.3d 1093, 1102 (9th Cir. 2017). Many
of the declarations were signed after the completion of the winter exploration program, see, e.g.,
Docket 27-7 at 11 (Decl. of Mr. Fair signed May 21, 2019), but this delay is understandable since
the use of declarations to demonstrate standing does not become necessary until the summary
judgment stage. Lujan v. Defs. of Wildlife, 504 U.S. 555, 563 (1992).
95 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 184 (2000).
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 19 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 20 of 73
no evidence from which th[e] Court can conclude that any of the Plaintiffs suffered
injury due to the 2018-19 Program.”96 ConocoPhillips’ argument again focuses on
the facts as they were at the time of Plaintiffs’ opening brief, when winter
exploration had completed, rather than the facts at the time the Amended
Complaint was filed, when exploration activities were still ongoing.
As explained above, certain Plaintiffs have demonstrated that they had been
injured and reasonably feared continuing and imminent future injury at the time the
Amended Complaint was filed. They have also shown that that injury would be
“fairly traceable” to ConocoPhillips’ winter exploration.97 For example, Mr. Fair
explained how the construction of ice roads could impact loon habitat,98 and Tribal
Administrator Itta explained that exploration activities cause noise and light
pollution and impact subsistence uses of the Teshekpuk Lake area.99 And, as
noted above, the EA itself recognized that winter exploration would cause
subsistence users to avoid the area.100
96 Docket 31 at 24.
97 Spokeo, Inc. v. Robins, ___ U.S. ___, 136 S. Ct. 1540, 1547 (2016) (citing Lujan, 504 U.S. at
560–61 (1992)).
98 Docket 27-7 at 8–9, ¶ 23.
99 See Docket 27-1 at 4, ¶ 8; see also Docket 27-2 at 5, ¶ 9 (Decl. of Ms. Ahtuangaruak).
100 AR8497.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 20 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 21 of 73
C. Redressability
ConocoPhillips argues that “a declaration from th[e] Court that BLM did not
comply with NEPA or ANILCA . . . would not redress any . . . injury” suffered by
Plaintiffs because the “2018-19 Program, including demobilization, is complete.”101
However, exploration was ongoing at the time the Amended Complaint was filed,
and a declaratory judgment and vacatur of the EA, at that point in time, would have
caused exploration to cease and thus redressed Plaintiffs’ injuries. Accordingly,
the Court finds that Plaintiffs have established the elements of standing as of
March 26, 2019, the date of the Amended Complaint.
II. Mootness
“A case becomes moot only when it is impossible for a court to grant ‘any
effectual relief whatever’ to the prevailing party.”102 “[T]he burden of demonstrating
mootness is a heavy one.”103 Federal Defendants and ConocoPhillips argue that
Plaintiffs’ claims are moot because the 2018-2019 winter exploration program they
101 Docket 31 at 25.
102 Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307 (2012) (internal quotations
omitted) (quoting Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000)). Indeed, “defendants in NEPA
cases face a particularly heavy burden in establishing mootness,” and the Ninth Circuit has
“repeatedly emphasized that if the completion of the action challenged under NEPA is sufficient
to render the case nonjusticiable, entities ‘could merely ignore the requirements of NEPA, build
its structures before a case gets to court, and then hide behind the mootness doctrine.’” Cantrell
v. City of Long Beach, 241 F.3d 674, 678 (9th Cir. 2001) (quoting West v. Sec’y of Dept. of Transp.,
206 F.3d 920, 925 (9th Cir. 2000)).
103 Feldman v. Bomar, 518 F.3d 637, 642 (9th Cir. 2008) (quoting Nw. Envtl. Def. Ctr. v. Gordon,
849 F.2d 1241, 1244 (9th Cir. 1988)).
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 21 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 22 of 73
challenge has already been completed.104 Federal Defendants maintain that
“there is no effective relief the Court can order here with the Program completed
and the wells suspended.”105
Plaintiffs argue that their claims fit within the “capable of repetition yet
evading review” exception to the mootness doctrine. This “exception applies when
(1) the duration of the challenged action is too short to allow full litigation before it
ceases or expires, and (2) there is a reasonable expectation that the plaintiffs will
be subjected to the challenged action again.”106 .
Beginning with the first prong, “[a]n action is ‘fully litigated’ if it is reviewed
by [a court of appeals] and the Supreme Court.”107 In Shell Offshore, Inc. v.
Greenpeace, Inc., the Ninth Circuit held that a preliminary injunction “limited to a
total duration of less than seven months” could not be fully litigated before expiring,
concluding that “[o]rders of such inherently limited duration will almost always
evade full review.”108 The EA at issue in this case authorized winter exploration
that began in December, 2018 and concluded in April, 2019, a period of only five
104 Docket 30 at 14–20; Docket 31 at 16–18 (agreeing with and adopting Federal Defendants’
mootness argument).
105 Docket 30 at 16.
106 See Wildwest Inst. v. Kurth, 855 F.3d 995, 1002–03 (9th Cir. 2017) (quoting Karuk Tribe of Cal.
v. U.S. Forest Serv., 681 F.3d 1006, 1018 (9th Cir. 2014)).
107 Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1287 (9th Cir. 2013).
108 Id.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 22 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 23 of 73
months.109 BLM’s approval of the 2018-2019 winter exploration in the NPR-A is
thus precisely the sort of short-term action that evades judicial review.
Defendants contend that this is a problem of Plaintiffs’ own making. They
maintain that Plaintiffs could have brought their case sooner and moved for a
preliminary injunction of the winter exploration in order to preserve the issue for
judicial review.110 Plaintiffs did not file the initial complaint in this case until March
1, 2019, well after ConocoPhillips’ winter exploration had begun.111 A preliminary
injunction, if entered, may have prevented the initiation or completion of the winter
exploration. However, no judicial relief could have prevented the expiration of the
authorization provided by the EA before it could be fully litigated.112
Turning to the second prong, Plaintiffs argue that BLM is likely to authorize
winter exploration in the area again, using the same, allegedly deficient
environmental review.113 BLM has repeatedly authorized winter exploration
109 Docket 32 at 2–3, ¶¶ 3–5 (Decl. of Lorna K. Richmond).
110 See Docket 30 at 19–20 (“To the extent BLM’s decision can be said to have evaded review, it
is only due to Plaintiffs’ own delay and not to something inherent in the governmental action
challenged.”); Docket 31 at 17–18 (“Nothing prevented Plaintiffs from filing this lawsuit earlier,
before the alleged deficiencies became moot for lack of an effective remedy.”); cf. Headwaters,
Inc. v. Bureau of Land Mgmt, 893 F.2d 1012, 1016 (9th Cir. 1989) (“Where prompt application for
a stay pending appeal can preserve an issue for appeal, the issue is not one that will evade
review.” (quoting Am. Horse Prot. Ass’n, Inc. v. Watt, 679 F.2d 150, 151 (9th Cir. 1982))).
111 Docket 1.
112 See Greenpeace Action v. Franklin, 14 F.3d 1324, 1330 (9th Cir. 1992) (“Although the harvest
of pollock could have been enjoined, the expiration of the 1991 [Total Allowable Catch] could not.
No injunction could have preserved this challenge to a short-term rule.”).
113 Docket 33 at 8–9.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 23 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 24 of 73
programs in the NPR-A after completing an EA and issuing a FONNSI.114 Neither
Federal Defendants nor ConocoPhillips dispute the company’s continued interest
in conducting winter exploration in the area. Indeed, the Court takes judicial notice
of the fact that ConocoPhillips has since proposed winter exploration for 2019-
2020 in the same area as the 2018-2019 exploration at issue in this case,115 and
that BLM has again completed an EA to review impacts of the proposed activity.116
Defendants argue, instead, that Plaintiffs’ claims are moot because the
specific EA and exploration activities in question cannot, by their very nature,
recur.117 They cite Friends of the Earth, Inc. v. Bergland, where the Ninth Circuit
held that a challenge to exploratory mining operations in Montana’s Stillwater
Complex was mooted by the termination of activity.118 In that case, the mining
operator ceased exploration when it struck water.119 As a result, the Circuit
reasoned that “[t]here [was] no reasonable possibility . . . that [the mining operator]
will resume or repeat the exploratory operation which plaintiffs previously sought
114 AR8550–52; see also Docket 31 at 8–9 (“This is the same practice BLM has followed for every
winter exploration program in the [NPR-A] for two decades.” (emphasis in original)).
115 Docket 44-2 at 1–3. Plaintiffs’ Motion to Take Judicial Notice of Supplemental Factual Materials
Pursuant to L. Civ. R. 7.1(d)(2) & L. Civ. R. 7.3(d) at Docket 44 is hereby GRANTED.
116 Docket 44-1.
117 See Docket 30 at 19 (“[I]t is not relevant that Conoco may, in future years, apply to conduct
additional winter exploration programs in the [NPR-A], for approval of any such program would
constitute new action for which new NEPA analysis would be required.”).
118 576 F.2d 1377, 1379 (9th Cir. 1978).
119 Id. at 1378.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 24 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 25 of 73
to enjoin.”120 The Ninth Circuit dismissed the plaintiffs’ argument that future
exploration was likely to occur in other areas within the broader Stillwater Complex,
stating that “relief under NEPA must be tailored to remedy the particular violations
in the case.”121
This case is distinguishable. In Bergland, the agency had determined that
no EIS was needed for the mining activity at issue.122 But the Ninth Circuit’s
opinion in that case gives no indication that the NEPA analysis for that mining
exploration case was tiered to any project-level analyses, on which the agency
may rely to authorize future exploratory projects. Further, unlike in Bergland,
Plaintiffs have here introduced evidence that ConocoPhillips plans to return to the
same general location of its 2018-2019 winter exploration to conduct further
exploratory drilling,123 not to “other places . . . in the” NPR-A .124
In this case, while the 2018 EA and the exploration it authorized cannot
themselves be repeated, the Court finds it quite likely that BLM will authorize future
winter exploration in the Teshekpuk Lake Area using an EA that tiers to the 2012
120 Id. at 1379.
121 Id. (emphasis in original) (quoting Realty Income Trust v. Eckerd, 564 F.2d 447, 456 (D.C. Cir.
1977)).
122 Id. at 1378.
123 Compare Docket 44-2 at 1–2 (listing lease tracts for proposed 2019-2020 exploratory drilling)
with AR8482–83 (listing lease tracts for 2018-2019 exploratory drilling).
124 Bergland, 576 F.2d at 1379.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 25 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 26 of 73
IAP/EIS and the GMT1 and GMT2 SEISs to support conclusions regarding impacts
to caribou and subsistence uses. In Greenpeace Action v. Franklin, the Ninth
Circuit held that a challenge to the National Marine Fisheries Service’s total
allowable catch (“TAC”) for 1991 fell into the capable of repetition yet evading
review exception to the mootness doctrine.125 Although the TAC had expired, the
Circuit concluded that “[t]he major issue—whether the Secretary has adequately
examined the effects of pollock fishing on the Steller sea lions—is likely to recur in
future years,” noting that the agency had relied on the same biological opinion to
support the 1992 TAC that it had used for the 1991 TAC.126 Similarly, it appears
likely that additional NEPA analyses for future exploration in the NPR-A will tier to
and rely on the 2012 IAP/EIS, the GMT1 SEIS, and the GMT2 SEIS in the same
manner as the 2018 EA.127
Based on the foregoing, the Court finds that the challenged action is capable
of repetition yet evades review and that the exception to the mootness doctrine
applies. Accordingly, the Court turns to the merits of Plaintiffs’ arguments.
125 14 F.3d 1324, 1330 (9th Cir. 1992).
126 Id.
127 Cf. Idaho Dep’t of Fish & Game v. Nat’l Marine Fisheries Serv., 56 F.3d 1071, 1075 (9th Cir.
1995) (distinguishing Greenpeace Action and holding that challenge to TAC was mooted by
issuance of new biological opinion); Ramsey v. Kantor, 96 F.3d 434, 446 (9th Cir. 1996) (holding
that challenge to fishery management plan was moot because the “agency [would] be basing its
rulings on different criteria or factors in the future”).
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 26 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 27 of 73
LEGAL STANDARD
I. Administrative Procedure Act
The Court reviews Federal Defendants’ compliance with NEPA and ANILCA
under the Administrative Procedure Act.128 A reviewing court may not set aside
an agency's decision unless it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.”129 Agency action is arbitrary and capricious
if it
relie[s] on factors which Congress has not intended it to consider,
entirely fail[s] to consider an important aspect of the problem, offer[s]
an explanation for its decision that runs counter to the evidence before
the agency, or is so implausible that it c[an]not be ascribed to a
difference in view or the product of agency expertise.130
A court’s review of whether an agency action is arbitrary and capricious should be
“searching and careful,” but “narrow,” as a court may not substitute its judgment
for that of the administrative agency.131 Courts will generally “uphold agency
decisions so long as the agencies have ‘considered the relevant factors and
128 See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882 (1990) (explaining that when a statute
does not “provide[] a private right of action for violations of its provisions,” plaintiffs may obtain
“judicial review [of agency action] under § 10(a) of the APA”); Alaska v. U.S. Dep’t of Agric., 273
F. Supp. 3d 102, 112 (D.D.C. 2017) (“Because NEPA, . . . , ANILCA, . . . , and [several other
statutes] do not create a private right of action for violations of those statutes, I review the Forest
Service’s promulgation of the Roadless Rule as a final agency action under the APA . . . .”).
129 5 U.S.C. § 706(2)(A).
130 Prot. Our Cmtys. Found. v. LaCounte, 939 F.3d 1029, 1034 (9th Cir. 2019) (alterations in
original) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43
(1983)).
131 Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989) (quoting Citizens to Pres. Overton
Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)).
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 27 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 28 of 73
articulated a rational connection between the factors found and the choices
made.’”132
II. National Environmental Policy Act
Pursuant to NEPA, an agency must prepare an EIS before taking an action
“significantly affecting the quality of the human environment.”133 An agency may
prepare an EA in order to determine whether an action significantly affects the
environment, such that an EIS is necessary.134 If, based on the EA, the agency
finds that the action will have no significant impact, it need not complete an EIS;135
however, “if substantial questions are raised as to whether a project . . . may cause
significant degradation of some human environmental factor,” the “agency must
prepare an EIS.”136 “If an agency decides not to prepare an EIS, it must supply a
‘convincing statement of reasons’ to explain why a project’s impacts are
insignificant.”137
132 Prot. Our Cmty’s. Found., 939 F.3d at 1034 (quoting City of Sausalito v. O’Neill, 386 F.3d 1186,
1206 (9th Cir. 1206).
133 42 U.S.C. § 4332(2)(C) (requiring a “detailed statement” analyzing “the environmental impact
of the proposed action,” among other things).
134 See 40 C.F.R. § 1501.4(b).
135 See 40 C.F.R. § 1501.4(e); id. at § 1508.13 (defining “finding of no significant impact”).
136 Barnes v. Fed. Aviation Admin., 865 F.3d 1266, 1274 (9th Cir. 2017) (omission and emphasis
in original) (quoting Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin, 538 F.3d
1172, 1219 (9th Cir. 2008)).
137 Cascadia Wildlands v. Bureau of Indian Affairs, 801 F.3d 1105, 1111 (9th Cir. 2015) (quoting
Blue Mountains Diversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998)).
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 28 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 29 of 73
“Courts apply a ‘rule of reason’ standard in reviewing the adequacy of a
NEPA document.”138 This inquiry “involves ‘a pragmatic judgment whether the
[document’s] form, content, and preparation foster both informed decision-making
and informed public participation.’”139 “Alternatively phrased, the task is to ensure
that the agency has taken a ‘hard look’ at the potential environmental
consequences of the proposed action.”140
NEPA’s implementing regulations provide that “[a]gencies are encouraged
to tier their environmental impact statements to eliminate repetitive discussions of
the same issues and to focus on the actual issues ripe for decision at each level
of environmental review.”141 ConocoPhillips and Plaintiffs argue over the correct
standard for reviewing EAs that tier to previously completed EISs. Quoting the
Ninth Circuit, ConocoPhillips maintains that “[a] comprehensive programmatic
impact statement generally obviates the need for a subsequent site-specific or
138 Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 992 (9th Cir. 2004)
(quoting Churchill Cty. v. Norton, 276 F.3d 1060, 1071 (9th Cir. 2001)) (reviewing EAs that tiered
to project-level EIS to approve timber sales).
139 Prot. Our Cmtys. Found. v. LaCounte, 939 F.3d 1029, 1035 (9th Cir. 2019) (quoting Churchill
Cty., 276 F.3d at 1071) (reviewing EIS approving wind facility).
140 Klamath-Siskiyou Wildlands Ctr., 387 F.3d at 993 (quoting Churchill Cty., 276 F.3d at 1072).
141 40 C.F.R. § 1502.20. Under this regulation,
Whenever a broad environmental impact statement has been prepared . . . and a
subsequent statement or environmental assessment is then prepared on an action
included within the entire program or policy . . . the subsequent statement or
environmental assessment need only summarize the issues discussed in the
broader statement and incorporate discussions from the broader statement by
reference and shall concentrate on the issues specific to the subsequent action.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 29 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 30 of 73
project specific impact statement, unless new and significant environmental
impacts arise that were not previously considered.”142 Plaintiffs respond that
“[t]iering satisfies BLM’s NEPA obligations only to the extent that the tiered-to
documents contain sufficient analysis to support conclusions regarding site-
specific impacts.”143
These positions are not inconsistent; Plaintiffs and ConocoPhillips each
make a correct statement of the applicable standard, although they emphasize
different aspects of that standard. A programmatic, or broad-level EIS “must
provide ‘sufficient detail to foster informed decision-making’” but need not evaluate
“site-specific impacts . . . until a critical decision has been made to act on site
development.”144 The fact that an “EIS contains sufficient analysis for informed
decision-making at the programmatic level does not reduce or minimize [an
agency’s] critical duty to ‘fully evaluate[]’ site-specific impacts” at later stages of
review.145 However, when a programmatic EIS does adequately consider the
142 Docket 31 at 26 (alteration and emphasis in ConocoPhillips’ briefing) (quoting Salmon River
Concerned Citizens v. Roberston, 32 F.3d 1346, 1356 (9th Cir. 1994)).
143 Docket 33 at 13 (citing Klamath-Siskiyou Wildlands Ctr., 387 F.3d at 997–99).
144 W. Watersheds Project v. Abbey, 719 F.3d 1035, 1049 (9th Cir. 2013) (quoting N. Alaska Envtl.
Ctr. v. Lujan, 961 F.2d 886, 890–91 (9th Cir. 1992)).
145 Id. (second alteration in original) (quoting N. Alaska Envtl. Ctr., 961 F.2d at 890–91); see also
Prot. Our Cmtys. Found. v. LaCounte, 939 F.3d 1029, 1039 (9th Cir. 2019) (explaining that “a site-
specific project demands site-specific analysis” and that “[a]gencies cannot rely on a general
discussion in a programmatic EIS or other document to satisfy its NEPA obligations for a site-
specific action”).
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 30 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 31 of 73
impacts of subsequent site-specific projects, a subsequent NEPA document need
not repeat that analysis “unless new and significant environmental impacts arise
that were not previously considered.”146
Tiering promotes efficiency; it allows an agency to take the requisite “‘hard
look’ at the potential environmental consequences of [a] proposed action”147
without treading the same ground twice. Department of Interior regulations
describe this balance well: “An environmental assessment may be prepared, and
a finding of no significant impact reached, for a proposed action with significant
effects, whether direct, indirect, or cumulative, if the environmental assessment is
tiered to a broader environmental impact statement which fully analyzed those
significant effects.”148 This does not, however, relieve the agency of its burden to
provide a “‘convincing statement of reasons’ to explain why” a project will not result
in impacts beyond those previously considered.149
146 Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 783 (9th Cir. 2006) (quoting Salmon River
Concerned Citizens, 32 F.3d at 1356); cf. Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 372 (1989)
(recognizing that NEPA’s implementing regulations require preparation of an SEIS if there “are
significant new circumstances or information relevant to environmental concerns and bearing on
the proposed action or its impacts.” (quoting 40 C.F.R. § 1502.9(c))). Whether “new and
significant environmental impacts” have arisen is itself subject to the “rule of reason” standard
that generally governs NEPA actions. Cf. id. at 373 (explaining that “[i]n this respect the decision
whether to prepare an [SEIS] is similar to the decision whether to prepare an EIS in the first
instance”).
147 Klamath-Siskiyou Wildlands Ctr., 387 F.3d at 993 (quoting Churchill Cty. v. Norton, 276 F.3d
1060, 1072 (9th Cir. 2001)).
148 43 C.F.R. § 46.140(c).
149 Cascadia Wildlands v. Bureau of Indian Affairs, 801 F.3d 1105, 1111 (9th Cir. 2015) (quoting
Blue Mountains Diversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998)).
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 31 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 32 of 73
III. Alaska National Interest Lands Conservation Act
Congress enacted ANILCA to “cause the least adverse impact possible on
rural residents who depend upon subsistence uses of the resources of [the public
lands in Alaska].”150 Section 810 of ANILCA contains procedural requirements that
are similar to NEPA’s; pursuant to its terms, an agency proposing an action
resulting in the “use, occupancy, or disposition of public lands” must evaluate that
action’s effects on “subsistence uses and needs,” the availability of other lands for
the same purpose, and “other alternatives” that would reduce the impacts to
subsistence uses.151 Due to their similarities, courts have analyzed the procedural
requirements of NEPA and ANILCA under the same standard.152
DISCUSSION
Although the parties’ briefing does not directly track the five claims set forth
in Plaintiffs’ Amended Complaint, the Court addresses each claim in the Amended
Complaint in the context of the applicable argument from the briefing.
150 16 U.S.C. § 3112(1).
151 16 U.S.C. § 3120(a).
152 See, e.g., City of Tenakee Springs v. Clough, 915 F.2d 1308, 1310–12 (9th Cir. 1990)
(evaluating adequacy of EIS’s consideration of alternatives under NEPA and ANILCA together);
Alaska Wilderness Recreation & Tourism Ass’n v. Morrison, 67 F.3d 723, 731 (9th Cir. 1995)
(same); Sierra Club v. Penfold, 664 F. Supp. 1299, 1307 (D. Alaska 1987) (“NEPA case law is
helpful in interpreting § 810.”).
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 32 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 33 of 73
I. First Claim: Impacts to Caribou and Subsistence
Plaintiffs’ first claim for relief alleges that there were “substantial questions
about whether the [2018-2019] winter exploration program would have significant
environmental impacts to caribou and subsistence activities.”153 They contend
that it was arbitrary and capricious for BLM to issue a FONNSI and authorize the
program without first completing an EIS.154 The Court will address the 2018-2019
EA’s discussion of impacts to caribou and subsistence in turn.
A. Caribou
Plaintiffs argue that the 2018 EA “include[s] no specific discussion of the
effects of ConocoPhillips’ winter exploration program on caribou.”155 They contend
that the EA disregards “substantial questions . . . concerning the effects of winter
exploration on caribou,” and that BLM was thus required to “prepare an EIS or to
supply a convincing statement of reasons to explain why the effects would be
insignificant.”156
The 2018 EA characterizes caribou as a “minimally impacted” species,
meaning that caribou “would not be affected to a degree requiring further analysis
153 Docket 5 at 22, ¶ 85.
154 Docket 5 at 22–23, ¶¶ 85–88.
155 Docket 27 at 21.
156 Docket 27 at 20; see also Cascadia Wildlands v. Bureau of Indian Affairs, 801 F.3d 1105, 1111
(9th Cir. 2015) (“If an agency decides not to prepare an EIS, it must supply a ‘convincing statement
of reasons’ to explain why a project’s impacts are insignificant.” (quoting Blue Mountain
Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1988))).
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 33 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 34 of 73
because either the expected impacts from the proposed action and alternative
would be minimal, or standard protections . . . would reduce impacts.”157
Specifically, the EA states:
Caribou, grizzly bear, wolf, wolverine and small mammals . . . may
inhabit the area. Only minor impacts would be expected and impacts
were covered in the 2012 NPRA IAP/EIS. The proposed action may
disturb and displace wildlife from the immediate area of activities but
would not reduce population levels or distribution during the winter
season.158
Responding to Plaintiffs’ concerns about caribou impacts raised in their comments
on the Preliminary EA, BLM states in the Final EA that:
Activities associated with the exploration including the construction
and use of ice roads and pads could be disruptive to caribou. It would
not be expected that caribou would vacate an extensive area adjacent
to exploration activities during winter and would not result in changes
to distribution of herds during the winter. . . . Although the proposed
action may be disruptive to individual caribou and displace some
individuals from the immediate vicinity of activities, these impacts
would be local in extent, would not affect herd distribution or reduce
populations.159
The 2012 IAP/EIS, to which the 2018 EA tiers, describes the Teshekpuk
Caribou Herd in detail, discussing its population trends, seasonal distribution, and
the significance of multiple environmental factors on calving success.160 It explains
that a majority of the Teshekpuk Caribou Herd has historically “wintered on the
157 AR8481.
158 AR8480 tbl. 1.2.
159 AR8575.
160 AR0294–301.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 34 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 35 of 73
coastal plain of the NPR-A, especially around Atqasuk and southeast of
Teshekpuk Lake.”161
The 2012 IAP/EIS discussed the potential impacts of exploration activities
on caribou for each of the five alternatives it considered.162 Alternative A assumed
that “196 oil or gas exploratory or delineation wells would be drilled from winter ice
pads over [a thirty-year period]” in the project area.163 Discussing the impacts of
exploration under this alternative, the EIS states that “[e]xploratory drilling
operations and ice roads would traverse Teshekpuk Caribou Herd caribou
wintering areas” and that “[a]ny caribou in the immediate vicinity of the activity
would be disturbed, possibly having a negative effect on their energy balance,
hormonal status, and calving success, due to prolonged stress.”164 However, the
EIS explained that “[b]ecause these animals are mobile and the operation would
be temporary, it is not expected that there would be any long-lasting effects on
caribou.”165 This analysis included a caveat: “However, this assumption has not
been scientifically tested and conditions for winter survival vary year to year. It is
161 AR0301.
162 See AR722–32 (Alternative A); AR941–45 (Alternative B-1); AR1064–67 (Alternative B-2);
AR1180–84 (Alternative C); AR1292–96 (Alternative D).
163 AR0722.
164 AR0725.
165 AR0725.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 35 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 36 of 73
possible that this disturbance could have an additive effect on natural winter
mortality.”166
Alternative B-2—the preferred and ultimately selected alternative—altered
the project area to provide additional protections for the Teshekpuk Caribou Herd;
it “would add approximately 1.9 million acres to the Teshekpuk Lake Special
Area . . . to protect caribou calving and insect-relief areas.”167 All told, Alternative
B-2 “would make approximately 11 million acres of the NPR-A unavailable for oil
and gas leasing . . . includ[ing] important calving and insect-relief areas for the
Teshekpuk Caribou Herd.”168 However, Alternative B-2 would “make[] lands . . . in
northeastern NPR-A near Fish Creek available”;169 i.e. the area of ConocoPhillips’
2018-2019 winter exploration activities.
Within this project area, Alternative B-2 assumed that “152 oil or gas
exploratory or delineation wells, 78 percent of those assumed under Alternative A,
would be drilled from winter ice pads [over a 30-year] period.”170 Discussing the
impacts of exploratory drilling under Alternative B-2, the 2012 IAP/EIS explained
that “[e]xploratory drilling would be conducted during the winter, when some
166 AR0723.
167 AR0036.
168 AR0037.
169 AR0037.
170 AR1064.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 36 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 37 of 73
mammal species are less active or less often present, although wintering
Teshekpuk Caribou Herd caribou could be present in large numbers.”171 The EIS
ultimately concluded that, under Alternative B-2, “[i]mpacts to terrestrial animals
would be similar to those discussed under Alternative A, but somewhat less in
spatial extent, frequency and magnitude.”172
Based on this record, Plaintiffs make several arguments about the
sufficiency of the 2018 EA’s conclusion with respect to the impact on caribou.
Primarily, Plaintiffs contend that several statements of uncertainty in the 2012
IAP/EIS raise “substantial questions as to whether the winter exploration may
significantly affect caribou in th[e] project area.”173 They emphasize the 2012
IAP/EIS’s recognition that its assumptions regarding the impact of winter
exploration have not been scientifically tested and that “it is possible that this
disturbance could have an additive effect on natural winter mortality.”174 Plaintiffs
also highlight the following statement, which appears in the EIS’s discussion of the
171 AR1065.
172 AR1064–65.
173 Docket 27 at 25; see also Barnes v. Fed. Aviation Admin., 865 F.3d 1266, 1274 (9th Cir. 2017)
(“An agency must prepare an EIS ‘if substantial questions are raised as to whether a
project . . . may cause significant degradation of some human environmental factor.” (internal
quotation marks omitted) (emphasis and omission in original) (quoting Ctr. for Biological Diversity
v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1219 (9th Cir. 2008))).
174 AR0723; see also Docket 33 at 16.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 37 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 38 of 73
impacts of the development of oil production, as opposed to exploration, under
several alternatives:
Oil and gas development within the NPR-A could introduce for the first
time such infrastructure and activities into the winter range of a North
Slope caribou herd (Teshekpuk Caribou Herd). Previously, no North
Slope caribou herd has been exposed to oil [and] gas activities year-
round. The Teshekpuk Caribou Herd has experienced seismic
exploration and activities near villages for many years, and some herd
members on the periphery of the range have been exposed to oil field
facilities in some years, but there is no evidence as yet of adverse
effects other than increased hunting mortality for those animals close
to villages. It is not known what population effects might occur if the
majority of the herd were to have year-round contact with oil and gas
facilities and activities. Despite the current lack of evidence regarding
adverse impacts from seismic exploration and village contact,
negative effects on caribou energy budgets during winter could result
from this new situation. Such an effect could be manifested through
increased winter mortality itself, or a reduction in calf productivity.175
Although these portions of the record acknowledge uncertainty about the
extent of the impact that winter exploration could have on Teshekpuk Caribou Herd
caribou, they do not demonstrate that the 2018 EA’s discussion of caribou was
inadequate or that BLM’s decision to issue a FONNSI was arbitrary and capricious.
The portions of the 2012 IAP/EIS on which Plaintiffs rely state that, as of that date,
there was “no evidence . . . of adverse effects” to caribou from the herd’s previous
exposure to exploration activities.176 And the EIS echoes this point in its discussion
of the cumulative impacts of Alternative B-2, stating: “[P]opulations of Teshekpuk
175 AR1067; see also Docket 27 at 20–24.
176 AR1067.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 38 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 39 of 73
Caribou Herd and Central Arctic Herd caribou have increased between the mid-
1970s and 2008. Thus, disturbance of caribou due to oilfield development may
adversely affect caribou populations, but these effects are not readily apparent
based on population trends.”177 The evidence available to BLM when it completed
the 2012 IAP/EIS therefore indicated that oil and gas exploration and development
activities had not had significantly impacted NPR-A caribou, and it was reasonable
to assume that future exploration activities would similarly have minimal impacts.
Despite this, the EIS recognized the possibility that future studies could
demonstrate otherwise.178 Uncertainty in the face of incomplete information is
acceptable in an EIS, provided that the agency “candidly disclose[s] the risks and
any scientific uncertainty” of the action under review.179
Moreover, the 2014 GMT1 and 2018 GMT2 SEISs, to which the 2018 EA
also tiers, support the 2012 IAP/EIS’s assumption that the 2018-2019 winter
exploration activities would have a minimal impact on Teshekpuk Caribou Herd
caribou. In its discussion of the impacts to terrestrial mammal survival or
productivity, the GMT1 SEIS notes that “[c]aribou displaced from habitats with
more nutritious forage, and caribou that expend energy responding to disturbances
177 AR1518
178 See AR0723; AR1067.
179 Seattle Audubon Soc’y v. Lyons, 871 F. Supp. 1291, 1318 (W.D. Wash. 1994), aff’d sub nom.
Seattle Audubon Soc’y v. Moseley, 80 F.3d 1401 (9th Cir. 1996).
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 39 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 40 of 73
may not be able to compensate for these energetic losses, which would potentially
reduce the individual’s survival and reproduction.”180 However, it then concludes
that “recent studies of calf growth and survival for caribou displaced by or exposed
to oil and gas infrastructure disturbance during calving . . . did not conclude
significant survival or growth impacts.”181 Similarly, the GMT2 SEIS notes that the
Teshekpuk Caribou Herd and the Central Arctic Herd “have undergone recent
changes in size, demography, and distribution,” but that “these changes are not
thought to be related to oil field development.”182
Based on this record, the 2018 EA adequately explains the basis for its
conclusion that ConocoPhillips’ winter exploration program would have minimal
impacts on Teshekpuk Caribou Herd caribou that “would not affect herd distribution
or reduce populations.”183 The 2012 IAP/EIS adequately evaluated the effects of
exploratory drilling in the area southeast of Teshekpuk Lake and concluded that
180 AR3122.
181 AR3122 (citing U.S. Army Corps of Eng’rs, Point Thompson Proj. Final EIS (2012)).
182 AR4884 (citing L. S. Parett, Caribou Biologist to Peter Bente, RV Management Coordinator,
Memorandum: Summary of Teshekpuk Caribou Herd Photocensus Conducted July 6, 2015
(2015) and E. A. Lenart, Units 26B and 26C caribou. In: P. Harper and L. A. McCarthy, Editors.
Caribou management report of survey and inventory activities 1 July 2012-30 June 2014. Alaska
Department of Fish and Game, Species Management Report ADF&G/DWC/SMR-2015-4,
Juneau, AK. Ch18:18-1 through 18-38. (2015)).
183 AR8575; see also AR8480 tbl. 1.2. (concluding that terrestrial mammals would be minimally
impacted); Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S.
29, 43 (1983) (requiring agency to “examine the relevant data and articulate a satisfactory
explanation for its action including a ‘rational connection between the facts found and the choice
made.’” (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962))).
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 40 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 41 of 73
impacts to caribou would be minimal based on the information then available, and
this analysis was supported by the subsequent 2014 GMT1 and 2018 GMT2
SEISs. There is no indication in the record that new evidence of a significant
impact on caribou has arisen that casts doubt on the continuing validity of Federal
Defendants’ conclusions.184
Plaintiffs also contend that the 2012 IAP/EIS’s “general discussions cannot
substitute for a specific analysis of this particular winter exploration program’s
impacts in this particular place.”185 Although the 2012 IAP/EIS did not discuss the
specific placement of the six exploratory wells authorized by the 2018 EA, it did
anticipate significant exploration within the area to the southeast of Teshekpuk
Lake, including the Fish Creek area.186 Moreover, it recognized that the Teshekpuk
184 Plaintiffs maintain that they “submitted multiple studies, one of which was published several
years after the [2012 IAP/EIS], demonstrating the potential for significant effects to caribou from
winter activities.” Docket 33 at 17. Their comments to the Preliminary EA cite a 2017 study of
Norwegian reindeer, which concludes that “conditions affecting maternal body mass during winter
explain close to all the variation in [calf viability],” not “a mismatch between plant phenology and
calving date” caused by “[w]arming of the arctic.” AR8447; see also AR8007 (Plaintiffs’ comments
on Preliminary EA). This study, while potentially relevant to the effect of winter energy
expenditures made by Arctic herbivores to avoid disturbances related to oil and gas exploration
and development, does not undermine the assumptions regarding population-level effects to the
Teshekpuk Caribou Herd contained in the documents to which the 2018 EA tiers. Indeed, as
discussed above, the 2012 IAP/EIS considered this possibility; it recognized that “caribou in the
immediate vicinity of [exploration activities] would be disturbed, possibly having a negative effect
on their energy balance . . . and calving success,” but concluded that these effects would be
minimal due to the mobility of caribou and the temporary nature of the exploration activities.
AR0725.
185 Docket 31 at 16.
186 AR0036–37 (discussing areas available for exploration and development under Alternative B-
2); AR1065 (describing extent of exploration authorized under Alternative B-2).
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 41 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 42 of 73
Caribou Herd would be present in this area during exploration activities and
discussed potential impacts to the herd.187 The 2012 IAP/EIS therefore adequately
considered the effect of exploratory drilling on caribou in the area to the southeast
of Teshekpuk Lake, such that additional site-specific analysis was not
necessary.188
By tiering to NEPA documents that fully analyze the impacts on caribou of
exploration activity to the southeast of Teshekpuk Lake, the 2018 EA supplied a
convincing reason for why additional analysis was not necessary. Accordingly, the
Court finds that the 2018 EA’s discussion of impacts to caribou was permissible
under NEPA and its implementing regulations and that it was neither arbitrary nor
capricious to issue a FONNSI with respect to caribou.189
B. Subsistence Activities
Plaintiffs next argue that Federal Defendants violated NEPA by “fail[ing] to
either prepare an EIS or supply a convincing statement of reasons explaining why
187 AR1065.
188 43 C.F.R. § 46.140(c).
189 43 C.F.R. § 46.140(c) (“An environmental assessment may be prepared, and a finding of no
significant impact reached, for a proposed action with significant effects, whether direct, indirect,
or cumulative, if the environmental assessment is tiered to a broader environmental impact
statement which fully analyzed those significant effects.”); see also Pit River Tribe v. U.S. Forest
Serv., 469 F.3d 768, 783 (9th Cir. 2006) (“A comprehensive programmatic impact statement
generally obviates the need for a site-specific or project-specific impact statement, unless new
and significant environmental impacts arise that were not previously considered.” (quoting Salmon
River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir. 1994))).
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 42 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 43 of 73
the effects to subsistence from winter exploration will be insignificant.”190
The 2018 EA identifies subsistence activities as “potentially affected” by
ConocoPhillips’ winter exploration, explaining that:
Large game (subsistence resources) would likely be deflected from
areas of exploration activity. Caribou hunting is lowest during winter,
therefore the deflection of furbearers and potential overlap with
trapping areas would be the most likely impact. . . . The area is on
the edge of the high use area for furbearer hunting and trapping.
However, ice roads may facilitate hunter access to areas otherwise
only accessible via snowmachine. Impacts to subsistence use from
this project in and of itself would be expected to be minor to moderate
and short term (reduced traditional access and reduced availability of
resources, primarily affecting families for whom furbearer harvesting
is important). . . . Harvest levels have remained stable to date, and
no reduction in the overall abundance of subsistence resources would
be anticipated.191
A separate section of the EA discussing the direct and indirect impacts of the winter
exploration program on subsistence activities expands on this analysis.192 It
explains that the “project area is traditionally used for winter furbearer hunting and
trapping and limited caribou hunting.”193 The EA tiers to the 2012 IAP/EIS, the
GMT1 SEIS, and the GMT2 SEIS for a discussion of the potential impacts to these
resources, and provides only a “brief[] summar[y] and analy[sis]” itself.194
190 Docket 27 at 26.
191 AR8479 tbl. 1.2.
192 AR8496–98.
193 AR8496.
194 AR8496–97.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 43 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 44 of 73
The 2018 EA’s subsistence impact section begins with a discussion of
furbearers:
The most likely direct impact would be experienced by furbearer
hunters and trappers because the area is used by all Nuiqsut
furbearer hunters and trappers and was, until recent development,
one of the few remaining areas near town where people could hunt
and trap without nearby infrastructure and industrial activity.195
The EA explains that “[a]lthough wolf and wolverine harvests do not contribute to
the subsistence diet and it is primarily young men who participate in the activity, it
is a critical component of the seasonal round of subsistence activities for Nuiqsut,”
and that “[f]or these reasons, impacts to furbearer harvesting could have an
outsized sociocultural impact for those families in Nuiqsut that depend on it.”196
Turning to caribou, the 2018 EA explains that “[t]he proposed activity would
also encompass a large area around Fish Creek, which is an important area for
wintertime caribou hunting because it is one of the rare areas on the [Arctic Coastal
Plain] where caribou can be found throughout the year.”197 For this reason,
“Nuiqsut residents place extreme value on the Fish Creek area because it has
been understood as an area that provides food security.”198 But the EA notes that
“[c]aribou harvest levels in the area have been low in recent years, and it is
195 AR8497.
196 AR8497.
197 AR8497.
198 AR8497.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 44 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 45 of 73
possible that more hunters will access the area to attempt harvests via the
exploration ice roads.”199
For both caribou and furbearers, the 2018 EA explains that “[s]ubsistence
hunters would likely avoid the area either because they believe that resources will
not be there or because they prefer not to hunt and trap around exploration
activities.”200 It recognizes that “[b]eing required to travel further to conduct
[subsistence] activities [in winter] increases the risk, time, and costs involved.”201
The EA notes, though, that “[s]ome hunters who are not disturbed by industrial
activities or who are less able to travel and hunt elsewhere . . . may take
advantage of the ice roads to travel.”202
Plaintiffs maintain that the analysis in the 2018 EA raises “substantial
questions as to whether the winter exploration program may significantly affect
subsistence activities in this project area.”203 They contend that the issuance of a
FONNSI was improper because none of the tiered-to EISs “specifically analyze[]
the effects of winter exploration in this project area,” such that preparation of a
199 AR8497.
200 AR8497.
201 AR8497.
202 AR8497.
203 Docket 27 at 29.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 45 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 46 of 73
separate EIS was necessary.204 Defendants maintain that the record supports the
EA’s conclusion and that the decision to issue a FONNSI for the 2018-2019 winter
exploration program was neither arbitrary nor capricious.205
The 2018 GMT2 SEIS and the 2012 IAP/EIS each contain a detailed
description of Nuiqsut subsistence activities.206 These analyses generally support
the 2018 EA’s description of subsistence uses in the project area. For instance,
the GMT2 SEIS explained that “[d]uring the winter months, furbearer hunters
pursue wolves (amaġuq) and wolverines (qavvik), [and] target caribou . . . as
needed and available,” but that “[o]verall, Nuiqsut harvesters target the highest
numbers of resources during the summer/fall months of August and September.”207
The GMT2 SEIS noted that a long-term project monitoring Nuiqsut caribou
harvesting “has documented a general increase in the percentage of harvests in
the area west of Nuiqsut,” an area that includes the location of the 2018-2019
winter exploration.208 Discussing the specific area at issue in this case, the GMT2
204 Docket 27 at 29.
205 Docket 30 at 24–26; Docket 31 at 34–35.
206 See AR4695–4758 (GMT2 SEIS); AR0417–25 (2012 IAP/EIS).
207 AR4720; see also, e.g., AR4746–48 (describing graphically and through narrative seasonal
subsistence usage of GMT2 project study area, which abuts 2018-2019 winter exploration project
area); AR0424 (2012 IAP/EIS stating that “Fish and Judy creeks area” is one of “several primary
harvest areas for caribou,” and that “West of Nuiqsut are some of the most important remaining
subsistence use areas for terrestrial mammals, including caribou, wolf, and wolverine”).
208 AR4953. The GMT2 SEIS concludes that this increase in subsistence harvest to the west of
Nuiqsut is a result of intensified summer and fall hunting “due to the growing use of four-wheelers
that can access overland areas during summer and fall.” AR4953; see also AR4975 (“During Year
9 of the [Nuiqsut Caribou Subsistence Monitoring Project], an increase in winter use of the project
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 46 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 47 of 73
SEIS stated that “[s]ome members of the [Teshekpuk Caribou Herd] remain on the
coastal plain through winter, which contributes to Nuiqsut hunters’ understanding
that caribou can usually be found west of the [GMT2] Project area in the vicinity of
Fish Creek.”209
Turning to impacts, the NEPA documents to which the 2018 EA tiers
discussed at length game deflection by, and hunter avoidance of, industrial activity.
The 2012 IAP/EIS stated that direct impacts “from an exploratory drilling operation”
would include “displacement of resources away from the drill site,” and that
“subsistence hunters report that [exploration] activity displaces game, especially
caribou, wolves, and wolverine.”210 And the GMT2 SEIS reported that
“[s]ubsistence harvesters often avoid areas of industrial construction due to
discomfort about hunting near human or industrial activity.”211 The GMT2 SEIS
explained that “[s]ome hunters are able to afford and are willing to respond to
impacts [of development] by traveling farther or taking more trips,” but recognized
that “[o]ther harvesters may not be able to afford or may not be willing to take more
study area was evident, likely as a result of year-round access to roads (including ice roads) west
of the community.”); AR4735–38 (maps showing moderate to high subsistence uses of the 2018-
2019 winter exploration project area).
209 AR4973.
210 AR0826–27.
211 AR4971; see also id. (citing a 2000 study that “notes that 80 percent of [Nuiqsut’s] 1993 harvest
came from areas more than 16 miles from any development”); AR4959 (noting that “[h]unter
avoidance could also result from actual or perceived reduced availability of subsistence resources
in the GMT2 area”).
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 47 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 48 of 73
or more distant hunting trips”212 It also noted that “[s]ome hunters are less likely to
bring younger family members along if they anticipate longer and/or riskier trips.”213
And the 2012 IAP/EIS explained that having to travel further to hunt and trap
“affects subsistence users in the following ways: loss of subsistence food; loss of
time; loss of money; increased stress and anxiety; increased risk of equipment
failure; and increased risk of loss of life or serious bodily injury.”214 That said, the
GMT2 SEIS’s ANICLA evaluation explained that “ice roads, where and when
access is permitted and feasible, facilitate access to remote areas that some
subsistence hunters appreciate and can be considered a countervailing effect.”215
The GMT2 SEIS reported that Nuiqsut’s per capita caribou harvest has
remained generally stable as development has intensified around the village, and
that “[m]ost hunters have continued to harvest caribou in desired amounts” while
avoiding industry.216 It recognized, though, that “as industry has moved closer to
Nuiqsut, it has become more difficult for residents to avoid industry” and that
“[a]voidance may be less of an option as fewer areas without development are
212 AR4957.
213 AR4957.
214 AR0826; see also AR5083–84 (GMT2 SEIS explaining that “hunters . . . travel[ing] farther west
to access hunting grounds . . . could result in increased investments in time, money, fuel, and
equipment and potentially affect hunting success”).
215 AR5496.
216 AR4960. The GMT2 SEIS noted that “[f]uture research will reveal how harvest levels change
when infrastructure is established closer to town or in core hunting areas and it becomes more
difficult for hunters to avoid development.” Id.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 48 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 49 of 73
present.”217
The GMT2 SEIS also considered the sociocultural impacts of reduced
access to traditional hunting grounds and decreased subsistence opportunities:
“When subsistence users’ opportunities to engage in traditional activities are
limited, transmittal of knowledge about those activities is reduced. If residents
decrease use of the [GMT2] project area, the opportunity to transmit traditional
knowledge about the area would diminish and could eventually be lost to younger
generations.”218 It recognized that:
If harvests or the number of active participants in harvesting declines,
younger generations would have fewer opportunities to learn the skills
necessary to hunt, harvest, and process subsistence resources.
Fewer opportunities to participate in the sharing and consumption of
traditional Inupiaq food would affect the social cohesion of the
community. Any changes to residents’ ability to participate in
subsistence activities, to harvest resources in traditional places at the
appropriate times, and to eat traditional Inupiaq foods could have
long-term or permanent effects on culture by diminishing social ties
within the community that are strengthened through harvesting,
processing, and sharing.219
The GMT2 SEIS recognized “[t]he high level of concern that Nuiqsut residents
place on future generations’ ability to maintain traditional subsistence.”220
217 AR5082.
218 AR4957.
219 AR4957; see also AR4950 (“For the subsistence lifestyle to be healthy, there must be continued
harvests (material value) at continued levels of traditional land use, identification with traditional
land use areas, community and harvester participation, processing, consumption, and sharing
(cultural values).”).
220 AR4957.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 49 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 50 of 73
Finally, Plaintiffs’ arguments notwithstanding, the 2012 IAP/EIS and 2018
GMT2 SEIS anticipated that these impacts would occur in the area of
ConocoPhillips’ 2018-2019 winter exploration. As noted above, in the portion of
this decision addressing the impacts to caribou, the 2012 IAP/EIS’s preferred
alternative authorized significant exploration within the area to the southeast of
Teshekpuk Lake, including the Fish Creek area.221 And while the project area
studied in the GMT2 SEIS does not include the area of ConocoPhillips’ winter
exploration, it is directly adjacent to it.222 The GMT2 “SEIS also analyze[d] indirect
impacts to the larger Nuiqsut subsistence us area,” including Judy and Fish creeks,
such as “hunter avoidance of infrastructure, the potential for localized deflection of
caribou, wolves, and wolverines, disturbance from aircraft and ground traffic, and
community participation.”223 The GMT2 SEIS’s cumulative impacts section
identified the expected development of the Willow project, and explained that
exploratory drilling would likely occur over the winter of 2018-2019.224 It
221 AR0036–37 (discussing areas available for exploration and development under Alternative B-
2); AR1064–65 (describing extent of exploration authorized under Alternative B-2); see also
AR1101–02 (discussing subsistence impacts under Alternative B-2).
222 See 5177 (map showing lease tracts involved in 2018-2019 winter exploration as west of GMT2
SEIS project study area); AR4735–38 (maps showing caribou, wolf, and wolverine subsistence
use areas in relation to GMT2 SEIS project study area).
223 AR4949.
224 AR5079–80 (“Willow/Tingmiaq, 2 exploratory wells drilled 2016, 3 exploratory wells drilled in
winter 2017-18, and possible appraisal wells in 2019. . . . 27 miles from Nuiqsut.”); see also
AR5496 (GMT2 SEIS ANILCA evaluation stating “[a]nnual winter oil and gas exploration activities
are expected to continue in areas west of Nuiqsut in the coming decades.”).
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 50 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 51 of 73
recognized that full development of the Willow area, “in combination with
development of GMT2, [is] likely to increase problems between subsistence users
and oil and gas activities,” and “will most likely pose difficulties for those hunters
who prefer to avoid oil and gas infrastructure altogether.”225
On this record, the Court is satisfied that the 2018 EA took the requisite hard
look at the proposed action’s impacts to subsistence activities. The 2012 IAP/EIS
and 2018 GMT2 SEIS each contain discussion of subsistence use by Nuiqsut
residents of the 2018-2019 winter exploration area. The record shows that winter
use of the area, although highly valued, is low relative to summer use, and that
Nuiqsut harvests, especially of caribou, have remained steady despite increased
development around the village. And the record supports the EA’s conclusion that
while many hunters may avoid the area of ConocoPhillips’ winter exploration, some
may use the project’s ice roads to gain increased access to overwintering caribou.
It was thus reasonable for the EA to determine that subsistence impacts
associated with one season’s winter exploration would be moderate and short-
term.226 Moreover, the GMT2 SEIS and 2012 IAP/EIS considered at length the
impacts associated with hunter avoidance and reduced access to traditional
hunting areas, which the EA identified as potential consequences of the 2018-2019
225 AR5082.
226 See Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 992 (9th Cir.
2004) (“Courts apply a ‘rule of reason’ standard in reviewing the adequacy of a NEPA document.’”
(quoting Churchill Cty. v. Norton, 276 F.3d 1060, 1071 (9th Cir. 2001))).
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 51 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 52 of 73
winter exploration program. By tiering to these documents, which fully analyzed
the issue, the 2018 EA provided a convincing reason for why further analysis of
impacts to subsistence uses was not necessary. The Court therefore finds that
the issuance of a FONNSI with respect to subsistence uses was neither arbitrary
nor capricious.227
II. Second Claim: Cumulative Impacts
Plaintiffs’ second claim for relief alleges that the 2018 EA “provides no
convincing justification for concluding that cumulative impacts to caribou and
subsistence activities” from the winter exploration and concurrent projects in the
area “will be insignificant.”228 They contend, therefore, that the issuance of a
FONNSI was arbitrary and capricious and a violation of NEPA.229
“‘NEPA requires an agency to consider’ cumulative effects, which ‘result[]
from the incremental impact of the action when added to other past, present and
227 See 43 C.F.R. § 46.140(c); see also Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 783 (9th
Cir. 2006).
228 Docket 5 at 24, ¶ 97.
229 Docket 5 at 23–25, ¶¶ 89–99. A separate claim in the Amended Complaint, Claim Three,
alleges that the “failure to consider the winter exploration program and geotechnical exploration
program together in the same EIS” violates NEPA’s implementing regulations. Docket 5 at 25,
¶¶ 100–103. However, Plaintiffs do not raise, or even mention, this claim in their briefing. The
Court therefore considers this claim waived. Cf. Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1213
(9th Cir. 2017) (“We ‘will not ordinarily consider matters on appeal that are not specifically and
distinctly raised and argued in appellant’s opening brief.’” (quoting Officers for Justice v. Civil
Serv. Comm’n of City & Cty. of San Francisco, 979 F.2d 721, 726 (9th Cir. 1992))); Alaska Ctr.
for Env’t v. U.S. Forest Serv., 189 F.3d 851, 858 n.4 (9th Cir. 1999) (“Arguments not raised in
opening brief are waived”). The Court does, to a certain extent, address the geotechnical
exploration program in its analysis of the 2018 EA’s consideration of cumulative impacts. See
infra at 55–56.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 52 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 53 of 73
reasonably foreseeable actions . . . .’”230 “An EA’s analysis of cumulative impacts
‘must give a sufficiently detailed catalogue of past, present, and future projects,
and provide adequate analysis about how these projects, and differences between
the projects, are thought to have impacted the environment.’”231 “General
statements about ‘possible effects’ and ‘some risk’ do not constitute a ‘hard look’
absent a justification regarding why more definitive information could not be
provided.”232 To prevail on a claim that an EA should have analyzed the cumulative
impacts of a certain project, a plaintiff “must show only the potential for cumulative
impact.”233
The 2018 EA contains a section discussing cumulative impacts, which
identifies all of the projects slated to occur in the winter exploration project area,
including geotechnical exploration and GMT2 development.234 It notes that
“exploration and construction in the area have occurred at the same time in
previous years,” but that “[t]he cumulative scenario for winter 2018-2019 is likely
more intense and extensive than previous winter seasons, or will likely be
230 Ctr. for Envtl. Law and Policy v. U.S. Bureau of Reclamation, 655 F.3d 1000, 1007 (9th Cir.
2011) (alteration in original) (quoting Nat. Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797,
814 (9th Cir. 2005)); see also 40 C.F.R. § 1508.7.
231 Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d 592, 603 (9th Cir.
2010) (quoting Lands Council v. Powell, 395 F.3d 1019, 1028 (9th Cir. 2005)).
232 Id. (quoting Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1380 (9th Cir.
1998)).
233 Id. at 605.
234 AR8502–07.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 53 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 54 of 73
perceived as such by residents.”235 Similar to the EA’s discussion of caribou and
subsistence impacts, the cumulative impacts section “tiers to the most recent
cumulative impact analysis in” the 2012 IAP/EIS, the 2014 GMT1 SEIS, and the
2018 GMT2 SEIS.236
The 2018 EA provides a more detailed discussion of cumulative impacts to
the two issue areas that its scoping process had identified as potentially impacted
by the proposed action: “subsistence, sociocultural systems, and environmental
justice” and “fish and water resources.”237 Its introduction concludes that “[n]either
the Proposed Action nor the No-Action Alternative would add substantially to the
incremental past, present, and future impacts described below.”238 Regarding
subsistence, the EA concludes that likely cumulative impacts “include hunter
disturbance and avoidance and reduced local availability of resources.”239 The EA
does not specifically address the cumulative impacts to caribou.
Plaintiffs contend that “[i]mpacts to caribou and subsistence activities from
ConocoPhillips’ [geotechnical] exploration and GMT2 construction projects will
undeniably cumulate with the impacts from winter exploration,” and that the EA
235 AR8503.
236 AR8502.
237 AR8503–05.
238 AR8503.
239 AR8503.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 54 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 55 of 73
does not contain a meaningful discussion of these cumulative impacts.240
Defendants maintain that the EA and the NEPA documents to which it tiers
adequately considered the cumulative impacts of ConocoPhillips’ 2018-2019
winter exploration, and that the issuance of a FONNSI was appropriate.241
Plaintiffs first argue that the 2018 EA “failed to provide any meaningful
analysis of the cumulative impacts from the [geotechnical] exploration program and
winter exploration on caribou.”242 Although the EA does not contain a discrete
section analyzing the cumulative impacts on caribou, the 2012 IAP/EIS and the
2018 GMT2 SEIS, to which it tiers, discuss the issue in detail.243 Neither document
identifies geotechnical exploration specifically; however, the geotechnical
exploration EA prepared by BLM in February 2019 shows that the anticipated
impacts of that activity are similar in kind to those of exploratory drilling.244 For this
240 Docket 27 at 31; Docket 33 at 21 (“Despite ample evidence that the conjunction of these three
projects would affect caribou and subsistence activities, BLM’s EA fails to analyze those impacts
in adequate detail.” (citations omitted)).
241 Docket 30 at 27–29; Docket 31 at 29–33.
242 Docket 27 at 31.
243 AR1515–31 (IAP/EIS); AR5042–45.
244 See AR8721 (“The proposed action is anticipated to deflect caribou and furbearers from the
area.”); AR8700 (“The proposed action may disturb and displace wildlife from the immediate area
of activities but would not reduce population levels or distribution during the winter season.”).
Plaintiffs identify the potential impacts of geotechnical exploration program as “drilling, increased
vehicular traffic, [and] increased human presence.” Docket 27 at 31. The geotechnical
exploration plan called for drilling to occur largely in the vicinity of the GMT1 development, but
also in several places within the 2018-2019 winter exploration project area. See AR8693 (map
showing area of geotechnical exploration). Under the plan, survey areas were to be accessed by
existing permanent infrastructure and previously permitted ice roads, as well as “tundra travel.”
AR8706. It appears that the geotechnical exploration project would not meaningfully expand the
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 55 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 56 of 73
reason, the Court is satisfied that discussion of the anticipated cumulative impacts
of exploratory drilling adequately captured the impacts of geotechnical exploration
as well. Moreover, the geotechnical exploration is a component of the broader
Willow development process, which both the GMT2 SEIS anticipated and
discussed in detail.245
The 2012 IAP/EIS recognized that “[f]uture leases in the NPR-A could
expose a large number of the Teshekpuk Caribou Herd caribou to exploration and
development activities on their summer and winter grounds, and during
migration.”246 It explained that “[l]oss of habitat and disturbance (including noise)
are the two primary factors associated with seismic activities and exploration
drilling that could affect mammals on the North Slope.”247 The 2012 IAP/EIS
reported that “it has been assumed that these effects [of prior exploration on
Teshekpuk Caribou Herd caribou] did not persist after exploration was completed,
and there was no consequential effect on the abundance or productivity of the
caribou.”248 It recognized, however, that “[i]t is not known what population effects
might occur if the majority of the [Teshekpuk Caribou] herd were to have year-
footprint of activities in the vicinity of Nuiqsut but would increase their intensity.
245 AR5019, AR5021 (cumulative effects section of GMT2 SEIS identifying Willow development
and associated gravel mine as a “present/future” project).
246 AR1522.
247 AR1515.
248 AR1516.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 56 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 57 of 73
round contact with oil and gas facilities and activities.”249 It concluded that
“[d]espite the current lack of evidence regarding adverse effects from seismic
exploration and village contact, negative effects on caribou energy budgets during
winter could result from this new situation.”250
The 2018 GMT2 SEIS identified ConocoPhillips’ 2018-2019 winter
exploration as a foreseeable future action.251 Addressing caribou generally, the
SEIS explained that “disturbance of caribou due to oil field development may
adversely affect caribou populations, but these impacts are not readily apparent
based on population trends.”252 The SEIS also addressed the cumulation of
development and exploration specifically, stating that “[t]he loss of habitats
resulting from the development of GMT2 and reasonably foreseeable future
exploration and development activities would affect primarily the [Teshekpuk
Caribou Herd] whose range is west of the Colville river.”253 The GMT2 SEIS
concluded:
Overall, industry and agency actions on the North Slope are expected
to have minor impacts to caribou herd productivity. Determining the
overall cumulative impacts on herd abundance is difficult to predict.
249 AR1524.
250 AR1524.
251 AR5019.
252 AR5042.
253 AR5044. The GMT2 SEIS also gave detailed consideration to the cumulative impacts of the
broader Willow development, of which the 2018-2019 winter exploration program was a part.
AR5043–44.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 57 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 58 of 73
Displacement of caribou from the periphery of core calving area would
be expected but this impact may have only a minor effect on the
[Teshekpuk Caribou Herd] population.254
As with their arguments relating to the sufficiency of the 2018 EA’s
discussion of direct and indirect impacts to caribou, Plaintiffs contend that these
statements raise questions that “demonstrate the need for detailed information at”
the site-specific planning phase.255 They argue that the “admittedly speculative
accounts” in the tiered-to EISs “cannot make up for fatal deficiencies in the winter
exploration EA.”256 However, as previously noted, NEPA allows for uncertainty, so
long as the agency provides “a justification regarding why more definitive
information could not be provided.”257
The GMT2 SEIS and the 2012 IAP/EIS adequately explained the difficulty in
predicting the effect that extended contact with oil and gas activities will have on
the Teshekpuk Caribou Herd because no North Slope herd has previously been in
that situation; there is no data because it is a novel situation. In the face of this
uncertainty, along with the uncertainty caused by variable winter conditions year
254 AR5044.
255 Docket 27 at 33; see also Docket 33 at 21–22.
256 Docket 27 at 34.
257 Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d 592, 603 (9th Cir.
2010) (quoting Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1380 (9th Cir.
1998)); see also Seattle Audubon Soc’y v. Lyons, 871 F. Supp. 1291, 1318 (W.D. Wash. 1994),
aff’d sub nom. Seattle Audubon Soc’y v. Moseley, 80 F.3d 1401 (9th Cir. 1996) (explaining that it
is permissible for EIS to “candidly disclose the risks and any scientific uncertainty” pertaining to
action under review).
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 58 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 59 of 73
to year,258 the planning documents to which the 2018 EA tiers described the
foreseeable future projects occurring in the area to the west of Nuiqsut and made
reasonable assumptions about their cumulative impact to caribou based on the
data available. This is not the sort of “vague discussion” of cumulative impacts
that the Ninth Circuit has held to be improper in other cases.259 The Court therefore
finds that the issuance of a FONNSI with respect to the winter exploration’s
cumulative impacts to caribou was neither arbitrary nor capricious.
Plaintiffs do not articulate how the 2018 EA’s discussion of cumulative
impacts to subsistence activities is deficient, other than to state that “impacts to
caribou and impacts to subsistence activities are necessarily intertwined.”260 As
discussed above, the GMT2 SEIS and 2012 IAP/EIS, to which the EA tiers,
adequately discussed the cumulative impacts to caribou caused by concurrent
development and exploratory drilling to the west of Nuiqsut. Moreover, the EA’s
conclusion that cumulative impacts from ConocoPhillips’ winter exploration would
“include hunter disturbance and avoidance and the reduced local availability of
resources”261 is well supported by the record.
258 AR1516.
259 See, e.g., Te-Moak Tribe of W. Shoshone of Nev., 608 F.3d at 604 (describing EA that “devotes
a scant three sentences to the cumulative impacts to Water Resources” and makes unsupported
statements that any cumulative impacts will be mitigated, holding that “[t]his type of conclusory
‘analysis’” violates NEPA).
260 Docket 33 at 20 n.2.
261 AR8503.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 59 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 60 of 73
The GMT2 SEIS contained a detailed discussion of the expected cumulative
impacts to subsistence caused by “oil and gas exploration and development
activities.”262 This section of the SEIS identified ConocoPhillips’ 2018-2019 winter
exploration as a foreseeable future project.263 It noted that “[r]ecently leased
acreage within and near the NPR-A indicates the likely future progression of oil
exploration and development on the western and southern sides of Nuiqsut.”264
The GMT2 SEIS stated that “[t]hese activities, in combination with development of
GMT2, are likely to increase problems between subsistence users and oil and gas
activities,” adversely impacting “hunters who prefer to avoid oil and gas
infrastructure altogether” and contributing to a loss of caribou habitat.265 The
section concluded that “the GMT2 Project in addition to other current and
reasonably foreseeable activities could increase the severity of existing impacts
on Nuiqsut subsistence uses” and that “[t]hese impacts include continued hunter
avoidance of industrial areas, continued disturbance of hunters and wildlife from
increased air and road traffic, reduced access to or loss of subsistence use areas,
and reduced availability of subsistence resources in development areas.”266
262 AR5078–84.
263 AR5080.
264 AR5080.
265 AR5082.
266 AR5083.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 60 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 61 of 73
This record demonstrates that the 2018 EA took the requisite hard look at
cumulative impacts to caribou and subsistence activities in the project area. And
by tiering to previous EISs that fully analyze these issues, the 2018 EA provides a
convincing justification for why further discussion of cumulative impacts is
unnecessary. The issuance of a FONNSI with respect to the cumulative impacts
to caribou and subsistence activities was therefore neither arbitrary nor
capricious.267
III. Fourth Claim: Consideration of Alternatives Under NEPA
The Amended Complaint’s fourth claim for relief argues that Federal
Defendants “failed to consider appropriate alternatives” in the 2018 EA.268
Plaintiffs contend that this violated NEPA, which requires an agency to “study,
develop, and describe appropriate alternatives to recommended courses of
action.”269
“Although an agency must still ‘give full and meaningful consideration to all
reasonable alternatives’ in an [EA], the agency’s obligation to discuss alternatives
is less than in an EIS.”270 “[W]ith an EA, an agency only is required to include a
267 See 43 C.F.R. § 46.140(c); see also Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 783 (9th
Cir. 2006).
268 Docket 5 at 26, ¶ 106.
269 42 U.S.C. § 4332(2)(E); Docket 27 at 39–42.
270 W. Watersheds Project v. Abbey, 719 F.3d 1035, 1050 (9th Cir. 2013) (quoting Westlands
Water Dist. v. U.S. Dept. of Interior, 376 F.3d 853, 868 (9th Cir. 2004)).
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 61 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 62 of 73
brief discussion of reasonable alternatives.”271 An agency need not “consider
every possible alternative to a proposed action, nor must it consider alternatives
that are unlikely to be implemented or those inconsistent with its basic policy
objectives.”272 “NEPA does not require a separate analysis of alternatives which
are not significantly distinguishable from alternatives actually considered, or which
have substantially similar consequences.”273
The 2018 EA only considers two alternatives in detail: the preferred
alternative and a no-action alternative.274 This by itself does not render the EA
deficient; “[t]he statutory and regulatory requirements that an agency must
consider ‘appropriate’ and ‘reasonable’ alternatives does not dictate the minimum
number of alternatives that an agency must consider,”275 and consideration in an
EA of only the preferred alternative and a no-action alternative can be sufficient
271 N. Idaho Cmty. Action Network v. U.S. Dep’t of Transp., 545 F.3d 1147, 1153 (9th Cir. 2008).
272 Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 813 (9th Cir. 1999) (quoting
Seattle Audubon Soc’y v. Moseley, 80 F.3d 1401, 1404 (9th Cir. 1996)).
273 Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d 592, 602 (9th Cir.
2010) (quoting Headwaters, Inc. v. Bureau of Land Mgmt., 914 F.2d 1174, 1181 (9th Cir. 1990));
see also Bering Strait Citizens for Responsible Res. Dev. v. U.S. Army Corp of Eng’rs, 524 F.3d
938, 955 (9th Cir. 2008) (“An agency need not . . . discuss alternatives similar to alternatives
actually considered, or alternative which are infeasible, ineffective, or inconsistent with the basic
policy objectives for the management of the area.” (quoting N. Alaska Envtl. Ctr. v. Kempthorne,
457 F.3d 969, 978 (9th Cir. 2006))).
274 See AR8484–94 (discussing preferred alternative); AR8495 (discussing no-action alternative).
275 Native Ecosys. Council v. U.S. Forest Serv., 428 F.3d 1233, 1246 (9th Cir. 2005).
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 62 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 63 of 73
under NEPA.276 However, “[t]he existence of a viable but unexamined alternative
renders an [EA] inadequate.”277
In their comments on the Preliminary EA, Plaintiffs stated that “[t]wo
reasonable alternatives BLM has failed to consider are: (1) allowing fewer wells;
and (2) requiring [ConocoPhillips] to comply with all BMPs” from the 2012
IAP/EIS.278 Plaintiffs contend that Federal Defendants’ failure to consider each of
these alternatives in detail renders the EA inadequate.279 Whether an alternative
is reasonable and appropriate depends on the stated purpose for the proposed
action.280 “So long as ‘all reasonable alternatives’ have been considered and an
appropriate explanation is provided as to why an alternative was eliminated, the
regulatory requirement is satisfied.”281
276 Te-Moak Tribe of W. Shoshone of Nev., 608 F.3d at 602 n.11 (“To the extent that [Plaintiff] is
complaining that having only two final alternatives—no action and a preferred alternative—
violates [NEPA’s] regulatory scheme, a plain reading of the regulations dooms that argument.”
(alteration in original) (quoting Native Ecosys. Council v. U.S. Forest Serv., 428 F.3d 1233, 1246
(9th Cir. 2005))).
277 W. Watersheds Project v. Abbey, 719 F.3d 1035, 1050 (9th Cir. 2013) (second alteration in
original) (quoting Westlands Water Dist. v. U.S. Dep’t of Interior, 376 F.3d 853, 868 (9th Cir.
2004)).
278 AR8010.
279 Docket 27 at 39–42.
280 Native Ecosys. Council, 428 F.3d at 1246 (“In judging whether the Forest Service considered
appropriate and reasonable alternatives, we focus first on the stated purpose for the Jimtown
Project.”).
281 Id.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 63 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 64 of 73
The 2018 EA identifies the need for the proposed action as follows: “The
project is needed to provide detailed information regarding potential reserves of oil
and gas within the NPR-A.”282 It explains that the “purpose for the proposed action
is for BLM to provide reasonable access to and use of public lands within the NPR-
A in a manner that would allow the applicant to explore and appraise oil and gas
potential on NPR-A leases operated by [ConocoPhillips].”283
The 2018 EA explained that it had considered but eliminated from detailed
analysis an alternative that would reduce the number of wells approved for
drilling.284 It states that “[t]he proposed action itself . . . significantly limits
alternatives for the location and timing of exploration,” and that “[l]ocations of
leases with oil and gas prospects limit the options for feasible drill site locations
and access routes.”285 Specifically, the EA explains that ConocoPhillips had an
obligation to “continue drilling to delineate the resource and an associated future
participating area” on its leases, and noted that a fewer-wells alternative “would be
contrary to the terms of [ConocoPhillips’] leases, which allow[] the company to
have a drilling program on its leases after going through the review process for
282 AR8473.
283 AR8473.
284 AR8495.
285 AR8495.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 64 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 65 of 73
particular wells.”286 The 2018 EA concludes that an alternative with fewer wells
“would not meet the purpose and need” of the proposed action.287
The Court finds that the EA gives an “appropriate explanation” for
eliminating an alternative that would authorize fewer wells.288 The record generally
supports Plaintiffs’ assertion that authorizing fewer exploratory wells would likely
reduce the impacts of ConocoPhillips’ winter exploration, resulting in fewer miles
of ice roads and a generally smaller footprint.289 And Plaintiffs are correct that BLM
has the authority to place limitations on the extent of lease-holder’s exploratory
drilling during a given season.290 However, the fact that BLM had the authority to
limit the number of wells does not mean that doing so would serve the purpose
and need of the project. The stated purpose of the proposed action in the 2018
EA was to “allow the applicant to explore and appraise oil and gas potential on [its]
NPR-A leases.”291 That section of the EA further explains that the winter
286 AR8495 (citing 43 C.F.R. § 3137).
287 AR8495.
288 Native Ecosys. Council v. U.S. Forest Serv., 428 F.3d 1233, 1246 (9th Cir. 2005).
289 See, e.g., AR8475 (map showing footprint of winter exploration); AR8497 (discussing impact
of ice roads and drilling); AR8498 (stating that under no-action alternative “[s]ociocultural stress
over the pace and extent of exploration and development may be reduced, and subsistence users
and resources would experience less disturbance from activities in the area”).
290 Docket 27 at 38; see also, e.g., 42 U.S.C. § 6506a(b) (allowing BLM to include “conditions,
restrictions, and prohibitions” on activities in NPR-A it deems necessary to “mitigate . . .
significantly adverse effects on . . . surface resources); 43 C.F.R. § 3131.3 (same); 43 C.F.R. §
3152.5 (allowing BLM to modify exploration permit “after consultation with the permittee”).
291 AR8473.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 65 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 66 of 73
exploration program was “composed of several elements . . . designed to meet the
applicant’s needs and objectives,” including “[d]rilling up to six exploratory wells to
acquire sufficient subsurface information to satisfy the applicant’s economic and
exploration performance criteria.”292 With ConocoPhillips having apparently
concluded that up to six additional exploration wells were necessary to obtain
sufficient information about the area’s development potential, it was reasonable for
the 2018 EA to eliminate an alternative authorizing fewer wells as inconsistent with
the proposed action’s purpose and need.293
Plaintiffs also maintain that the 2018 EA is deficient because it does not
consider an alternative that would have required ConocoPhillips to comply with all
of the 2012 IAP/EIS’s BMPs.294 ConocoPhillips requested deviations from three
of the 2012 IAP/EIS’s BMPs: BMP B-2g, which prohibits “[c]ompaction of snow
cover or snow removal from fish-bearing waterbodies,” except in approved
locations, in order to maintain fish populations and habitat;295 BMP B-2d, which
292 AR8473–74.
293 Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 813 (9th Cir. 1999) (explaining
that an agency need not “consider alternatives that are . . . inconsistent with its basic policy
objectives” (quoting Seattle Audubon Soc’y v. Moseley, 80 F.3d 1401, 1404 (9th Cir. 1996))); see
also Native Ecosys. Council v. Weldon, 697 F.3d 1043, 1051 (9th Cir. 2012) (“A court generally
must be ‘at its most deferential’ when reviewing scientific judgments and technical analyses within
the agency’s expertise under NEPA.” (quoting N. Plains Res. Council, Inc. v. Surface Transp. Bd.,
668 F.3d 1067, 1075 (9th Cir. 2011))).
294 Docket 27 at 39–42.
295 AR8487.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 66 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 67 of 73
limits the amount of “unfrozen water and ice” that may be removed from lakes, in
order to maintain fish populations and habitat;296 and BMP A-5, which prohibits
refueling “within 500 feet of [an] active floodplain” and generally requires “[f]uel
storage stations . . . [to] be located at least 500 feet from any water body,” in order
to “[m]inimize the impacts of contaminants . . . on fish, wildlife, and the
environment.”297 The EA grants each of these deviation requests after determining
that they would not compromise the objectives of the BMPs.298 It explains that
each deviation contains mitigation measures to promote the purpose of the BMP
in question, or that recent data shows that the deviation will not result in adverse
impacts.299
296 AR8489.
297 AR8491.
298 AR8487 (“[ConocoPhillips] would support the intent of BMP B-2g.”); AR8489 (“[T]he objective
of . . . BMP [B-2d] can still be maintained while allowing for the deviation.”); AR8492
(“[ConocoPhillips] would support the objective of BMP A-5 and minimize the impacts of
contaminants from refueling operations on fish wildlife and the environment.”).
299 See AR8487 (stating that ConocoPhillips “provided . . . the bathymetry data for lake M0007”
showing that a deviation from BMP B-2g “should not have an adverse effect on the overall
hydrologic regime of the lake and should not impact habitat or populations of fish, invertebrates,
or waterfowl); AR8489 (explaining that data submitted by ConocoPhillips and data developed by
BLM “supports an increased use of ice aggregate beyond what is stated in . . . BMP B-2d, in
concurrence with [Alaska State agency] water permitting specialists”); AR8492 (explaining that
ConocoPhillips “has designed fuel storage facilities and developed plans and protocols to avoid
critical waterbodies and to properly account for the project area’s hydrologic conditions” to
mitigate deviation from BMP A-5); see also AR8537–40 (providing data regarding lakes in project
area and characteristics supporting BMP B2-d deviation); AR8566–74 (responding to comments
about BMP B-2 deviations).
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 67 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 68 of 73
The 2018 EA concludes that deviation from BMPs B-2g, B-2d, and A-5
would not result in additional adverse impacts and explained its reasoning.300 An
alternative requiring compliance with these BMPs would therefore have
substantially similar consequences to the EA’s preferred alternative. Under these
circumstances, it was neither arbitrary nor capricious for the agency to exclude this
alternative from consideration.301
The Court is therefore satisfied that the 2018 EA considered a proper range
of alternatives. Under Ninth Circuit precedent, an EA considering only a preferred
alternative and a no-action alternative can satisfy an agency’s duty under NEPA.302
And unlike the cases on which Plaintiffs rely, two of which are unreported, the two
alternatives considered in 2018 EA would authorize meaningfully different levels
300 The Court defers to the agency’s scientific judgment regarding the impact of deviation from the
BMPs. See Native Ecosys. Council v. Weldon, 697 F.3d 1043, 1051 (9th Cir. 2012) (“A court
generally must be ‘at its most deferential’ when reviewing scientific judgments and technical
analyses within the agency’s expertise under NEPA.” (quoting N. Plains Res. Council, Inc. v.
Surface Transp. Bd., 668 F.3d 1067, 1075 (9th Cir. 2011))).
301 Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d 592, 602 (9th Cir.
2010) (“NEPA does not require a separate analysis of alternatives which are not significantly
distinguishable from alternatives actually considered, or which have substantially similar
consequences.” (quoting Headwaters, Inc. v. Bureau of Land Mgmt., 914 F.2d 1174, 1181 (9th
Cir. 1990))).
302 See, e.g., Id. at 602 n.11 (9th Cir. 2010) (“To the extent that [Plaintiff] is complaining that having
only two final alternatives—no action and a preferred alternative—violates [NEPA’s] regulatory
scheme, a plain reading of the regulations dooms that argument.” (alteration in original) (quoting
Native Ecosys. Council v. U.S. Forest Serv., 428 F.3d 1233, 1246 (9th Cir. 2005))); see also Earth
Island Inst. v. U.S. Forest Serv., 697 F.3d 1010, 1023 (9th Cir. 2012) (explaining that “it makes
little sense to fault an agency for failure to consider more environmentally sound alternatives to a
project which it has properly determined, through its decision not to file an impact statement, will
have no significant environmental effects anyway.”).
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 68 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 69 of 73
of activity.303 Finally, as discussed above, BLM’s decision not to consider the two
alternatives proposed by Plaintiffs was appropriate.
IV. Fifth Claim: Consideration of Alternatives Under ANILCA
The fifth claim for relief in the Amended Complaint is that Federal
Defendants “failed to consider alternatives that would reduce or eliminate the use
of lands needed for subsistence purposes” in violation of ANILCA.304 Section
810(a) of ANILCA provides that:
In determining whether to withdraw, reserve, lease, or otherwise
permit the use, occupancy, or disposition of public lands under any
provision of law authorizing such actions, the head of the Federal
agency having primary jurisdiction over such lands or his designee
shall evaluate the effect of such use, occupancy or disposition on
subsistence uses and needs, the availability of other lands for the
purposes sought to be achieved, and other alternatives which would
reduce or eliminate the use, occupancy, or disposition of public lands
needed for subsistence purposes.305
The 2018 EA includes a separate ANILCA § 810 evaluation.306 The
evaluation describes the winter exploration program and evaluates its “[e]ffect . . .
303 See Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S. Dep’t of Interior, 655 F. App’x 595, 599
(9th Cir. 2016) (holding that agency’s “decision not to give full and meaningful consideration to
the alternative of a reduction in maximum interim contract water quantities was an abuse of
discretion” where no-action alternative assumed maximum interim contract water qualities); W.
Watersheds Project v. Abbey, 719 F.3d 1035, 1050 (9th Cir. 2013) (holding that EA’s consideration
of alternatives was improper where three action alternatives and no-action alternative all
“considered issuing a new grazing permit at the same grazing level as the previous permit”).
304 Docket 5 at 26–27, ¶¶ 108–11.
305 16 U.S.C. § 3120(a).
306 AR8581–86.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 69 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 70 of 73
on subsistence uses and needs.”307 It finds that ConocoPhillips’ winter exploration
would “not significantly reduce harvestable fisheries resources” or “significantly
reduce the abundance of harvestable wildlife resources.”308 The evaluation
determines that “no other lands are appropriate for this specific purpose” due to
the nature of ConocoPhillips’ leases.309 Finally, it discusses the no-action
alternative, explaining that it was “contrary to the current Administration’s policy
and [ConocoPhillips’] lease rights.”310 The evaluation ultimately concludes that:
The direct and indirect effects of the proposed action are not
anticipated to significantly restrict subsistence uses. The proposed
action is anticipated to result in minor to moderate, short-term impacts
to subsistence uses, primarily associated with restrictions on hunter
access and reduced availability of subsistence resources in areas
where they are traditionally harvested.311
As with their NEPA claim, Plaintiffs contend that this evaluation is deficient,
and that ANILCA § 810(a) required the 2018 EA to either consider a fewer-wells
alternative and an alternative with no deviations from the 2012 IAP/EIS BMPs or
provide an adequate explanation for not doing so.312 Courts generally evaluate
the procedural requirements of ANILCA and NEPA under the same standard.313
307 AR8585.
308 AR8585.
309 AR8585.
310 AR8585.
311 AR8586.
312 Docket 27 at 35–39.
313 See, e.g., City of Tenakee Springs v. Clough, 915 F.2d 1308, 1311–1312 (9th Cir. 1990) (noting
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 70 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 71 of 73
At the outset, Federal Defendants argue that consideration of Plaintiffs’
proposed alternatives is not mandated by ANILCA § 810(a). They contend that
ANILCA only requires the consideration of alternatives that would reduce the total
amount of land needed for a given action.314 The Court finds this argument
unconvincing. The plain language of § 810(a) requires agencies to consider
alternatives that would “reduce or eliminate the use, occupancy, or disposition of
public lands needed for subsistence purposes;”315 an alternative could restrict the
ability to use an area for subsistence purposes without reducing that area’s size.
Federal Defendants rely on the Ninth Circuit’s statement in Kunaknana v.
Clark that § 810(a) requires an agency to consider “other alternatives which would
reduce or eliminate the amount of land taken away from subsistence uses.”316 But
the Circuit there applied the language of § 810(a) to the particular facts of the case,
which concerned BLM’s decision to offer certain tracts in the NPR-A for oil and gas
leasing.317 Since Kunaknana, the Ninth Circuit has considered alternatives that
that “[b]oth NEPA and ANILCA require the [agency] to consider reasonable alternatives to a
proposed action” and evaluating claims brought under each statute together); Alaska Wilderness
Recreation & Tourism Ass’n v. Morrison, 67 F.3d 723, 731 (same); Sierra Club v. Penfold,
664 F. Supp. 1299, 1307 (D. Alaska 1987) (“NEPA case law is helpful in interpreting § 810.”).
314 Docket 30 at 30–32. According to Federal Defendants, consideration of potential mitigation
measures, as they characterize Plaintiffs’ proposed alternatives, is only necessary under ANILCA
when the agency determines that an action will “significantly restrict subsistence uses.” Id. at 31
(quoting 16 U.S.C. § 3120(a)).
315 16 U.S.C. § 3120(a) (emphasis added).
316 742 F.2d 1145, 1150–51 (9th Cir. 1984) (citing 16 U.S.C. § 3120(a)); see also Docket 30 at 31–
32.
317 Id. at 1150–51. The Ninth Circuit explained that “[t]he plain terms of Section 810(a)
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 71 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 72 of 73
reduce the scope or intensity of an activity within a given area to fall within §
810(a)’s meaning.318 Moreover, even if Federal Defendants were correct on this
point, Plaintiffs’ proposed alternatives would have reduced the footprint of the
2018-2019 winter exploration by authorizing fewer wells or prohibiting the use of
certain areas for infrastructure by denying ConocoPhillips’ BMP deviation
requests.319 Plaintiffs’ proposed alternatives therefore fell within the scope of
ANILCA § 810(a).
Nevertheless, the Court is satisfied that BLM fulfilled its obligation under that
provision to evaluate “alternatives which would reduce or eliminate the use,
occupancy, or disposition of public lands needed for subsistence purposes.”320 As
noted above, this section is analogous to NEPA’s mandate to consider reasonable
and appropriate alternatives, and “NEPA case law is helpful in interpreting §
810.”321 As explained in the previous section of this decision, the 2018 EA’s
require . . . the BLM . . . to ‘evaluate’ three factors concerning the decision to issue oil and gas
leases involved in the programmatic leasing sale.” Id. at 1150 (emphasis added).
318 See Alaska Wilderness Recreation & Tourism Ass’n v. Morrison, 67 F.3d 723, 730 (9th Cir.
1995) (holding that failure to consider alternative reducing volume of logging in Tongass National
Forest violated NEPA and ANILCA § 810); City of Tenakee Springs v. Clough, 915 F.2d 1308,
1311 (9th Cir. 1990) (holding that EIS violated NEPA and ANILCA § 810 because it did not
consider alternative “which would have resulted in less timber being made available”).
319 See Docket 33 at 23.
320 16 U.S.C. 3120(a).
321 Sierra Club v. Penfold, 664 F.Supp. 1299, 1307 (D. Alaska 1987); see also City of Tenakee
Springs v. Clough, 915 F.2d 1308, 1311–12 (9th Cir. 1990) (noting that “[b]oth NEPA and ANILCA
require the [agency] to consider reasonable alternatives to a proposed action” and evaluating
claims brought under each statute together).
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 72 of 73

Case No. 3:19-cv-00056-SLG, Native Village of Nuiqsut, et al. v. Bureau of Land Management,
et al.
Decision and Order
Page 73 of 73
consideration of only the preferred alternative and a no-action alternative was
permissible under NEPA, and Federal Defendants’ decision to eliminate Plaintiffs’
proposed alternatives from consideration was neither arbitrary nor capricious.322
For the same reasons, the Court finds that the EA complied with ANILCA § 810(a).
ORDER
In light of the foregoing, it is hereby ORDERED that:
Plaintiffs Center for Biological Diversity and Friends of the Earth are
DISMISSED for lack of standing.
The 2018 EA and the ROD authorizing ConocoPhillips’ 2018-2019 winter
exploration in the NPR-A are UPHELD. Plaintiffs’ requests at Docket 27 for
declaratory relief and vacatur of the 2018 EA and the ROD are therefore DENIED.
Plaintiffs’ Motion to Take Judicial Notice of Supplemental Factual Materials
at Docket 44 is GRANTED.
The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 9th day of January, 2020 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
322 See supra 61–69.
Case 3:19-cv-00056-SLG Document 46 Filed 01/09/20 Page 73 of 73