Alaska Industrial Development and Export Authority v. Biden et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ALASKA INDUSTRIAL
DEVELOPMENT AND EXPORT
AUTHORITY, et al.,
Plaintiffs,
and
STATE OF ALASKA,
Intervenor-Plaintiff,
v.
JOSEPH R. BIDEN, JR., in his official
capacity as President of the United
States, et al.,1
Defendants,
and
NATIVE VILLAGE OF VENETIE
TRIBAL GOVERNMENT, et al.,
Intervenor-Defendants.
Case No. 3:21-cv-00245-SLG
ORDER RE MOTIONS FOR SUMMARY JUDGMENT
Before the Court at Docket 60 is the motion for summary judgment filed by
Plaintiffs Alaska Industrial Development and Export Authority (“AIDEA”), North
Slope 	Borough, 	Arctic 	Slope 	Regional 	Corporation, 	and 	Kaktovik 	Iñupiat
1 Pursuant to Fed. R. Civ. P. 25(d), the current Alaska State Director for the Bureau of Land
Management, Steven Cohn, is automatically substituted in this matter for his predecessor,
Defendant Thomas Heinlein.
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Corporation; at Docket 59 is Intervenor-Plaintiff State of Alaska’s (the “State”)
motion for summary judgment.2 	Plaintiffs and the State challenge President Joe
Biden’s Executive Order 13990 (“EO 13990”) and actions the U.S. Department of
the Interior (“DOI” or “Interior”) and the Bureau of Land Management (“BLM”) took
to 	implement 	that 	order’s 	directive 	to 	place 	a 	temporary 	moratorium 	(the
“Moratorium”) on the federal government’s implementation of an oil and gas
leasing program (the “Program”) on the Coastal Plain of the Arctic National Wildlife
Refuge (“ANWR” or the “Refuge”).
The President, DOI, Interior Secretary Deb Haaland, Interior Principal
Deputy Assistant Secretary of Land and Minerals Management Laura Daniel-
Davis, BLM, BLM Director Tracy Stone-Manning, and BLM Alaska State Director
Cohn (collectively, “Federal Defendants”)3 responded in opposition at Docket 63
to Plaintiffs’ and the State’s motions and request entry of judgment in their favor.
Intervenor-Defendants Gwich’in Steering Committee, et al., and the Native Village
of Venetie Tribal Government, Arctic Village Council, and Venetie Village Council
(collectively, “Intervenor-Defendants”) responded in opposition to Plaintiffs’ and
the 	State’s 	motions 	at 	Docket 	64 	and 	Docket 	65, 	respectively.4 	Federal
2 Throughout this order, the citations to the parties’ filings refer to the page numbers from the
docket rather than the page numbers of the parties’ briefs.
3 When appropriate throughout this order, the Court refers to all Federal Defendants except for
the President as “Agency Defendants.”
4 The Gwich’in Steering Committee submitted its opposition at Docket 64 on behalf of itself and
the Alaska Wilderness League; the Alaska Wildlife Alliance; the Canadian Parks & Wilderness
Society – Yukon; Defenders of Wildlife; Environment America, Inc.; Friends of Alaska National
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Defendants and Intervenor-Defendants are hereinafter collectively referred to as
“Defendants.” 	Plaintiffs replied to the oppositions at Docket 67, and the State
replied at Docket 66.
The Court heard oral argument on June 20, 2023. For the reasons set forth
below, the Court denies Plaintiffs’ and the State’s motions and enters judgment in
favor of Defendants.
BACKGROUND
This 	case 	is 	one 	of 	several 	actions 	involving 	Agency 	Defendants’
implementation of the Program on ANWR’s Coastal Plain. 	The Court described
the Coastal Plain and its cultural, ecological, and economic significance in a
January 2021 order issued in Gwich’in Steering Committee v. Bernhardt.5 	The
Court assumes familiarity here.
As relevant here, in December 2017, Congress authorized an oil and gas
leasing program on the Coastal Plain through Section 20001 of the Tax Cuts and
Jobs Act of 2017 (the “Tax Act”).6 	Section 20001(b)(1) amends the Alaska
National Interest Lands Conservation Act (“ANILCA”)7 by lifting the restriction on
Wildlife Refuges; the National Wildlife Federation; the National Wildlife Refuge Association; the
Northern Alaska Environmental Center; the Sierra Club; The Wilderness Society; and
Wilderness Watch. The remaining Intervenor-Defendants filed their joint opposition at Docket
65.
5 Case No. 3:20-cv-00204-SLG, 2021 WL 46703, at *1–3 (D. Alaska Jan. 5, 2021).
6 Pub. L. No. 115-97, 131 Stat. 2054 (2017) [hereinafter Tax Act].
7 Pub. L. No. 96-487, 94 Stat. 2371 (1980) (codified in relevant part at 16 U.S.C. §§ 3101–3233)
[hereinafter ANILCA].
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oil and gas development on the Coastal Plain that had been included in ANILCA
since it was enacted in 1980; it does so by adding an additional purpose for the
Refuge: “to provide for an oil and gas program on the Coastal Plain.” 	Section
20001(b)(2)(A) 	directs 	the 	Interior 	Secretary 	to 	“establish 	and 	administer 	a
competitive oil and gas program for the leasing, development, production, and
transportation of oil and gas in and from the Coastal Plain.” 	Section 20001(c)(1)
requires the Interior Secretary to conduct at least two area-wide lease sales under
this program of at least 400,000 acres each; the Interior Secretary “shall offer” the
first lease sale not later than December 22, 2021, and the second not later than
December 22, 2024. 	Section 20001(c)(2) directs the Interior Secretary to “issue
any rights-of-way or easements across the Coastal Plain for the exploration,
development, production, or transportation necessary to carry out this section.”
Section 20001(c)(3) provides that the Interior Secretary “shall authorize up to 2,000
surface acres of Federal land on the Coastal Plain to be covered by production
and support facilities (including airstrips and any area covered by gravel berms or
piers for support of pipelines) during the term of the leases under the oil and gas
program under this section.” 	The Tax Act further instructs the Interior Secretary,
“[e]xcept as otherwise provided in this section,” to administer this oil and gas
program “in a manner similar to the administration of lease sales under the Naval
Petroleum Reserves Production Act of 1976 . . . (including regulations).” 8
8 Tax Act § 20001(b)(3). The regulations governing oil and gas leases under the Naval
Petroleum Reserves Production Act of 1976 (the “NPRPA”), 42 U.S.C. § 6501 et seq., are set
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After Congress passed the Tax Act, BLM initiated the Program’s review
process pursuant to the National Environmental Policy Act (“NEPA”). 	In
September 2019, BLM released an Environmental Impact Statement (the “EIS”)
analyzing the environmental impacts of a leasing program on the Coastal Plain.9
The EIS evaluated three action alternatives and one no-action alternative.10
BLM identified the alternative that “offers the opportunity to lease the entire
program 	area” 	and 	“the 	fewest 	acres 	with 	no 	surface 	occupancy 	(NSO)
stipulations” as its preferred alternative.11 	BLM did not analyze alternatives that
allowed fewer than 2,000 acres of surface facilities, reasoning that doing so
“would be inconsistent with [the Tax Act] as Congress explicitly established the
protective facility acreage limit.” 12
In August 2020, then-Interior Secretary David Bernhardt published a Record
of Decision (the “ROD”) establishing the Program.13 	The ROD adopted the
preferred alternative identified in the EIS with some modifications. 14 	Then, on
December 7, 2020, BLM published a Notice of 2021 Coastal Plain Alaska Oil and
forth at 43 C.F.R. Part 3130.
9 Administrative Record (“AR”) 1–3135. Federal Defendants filed the Administrative Record at
Docket 48, Docket 53, and Docket 56.
10 AR 19–20.
11 AR 19.
12 AR 76.
13 AR 3138–3225.
14 AR 3145.
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Gas Lease Sale and Notice of Availability of the Detailed Statement of Sale.15 The
lease sale took place on January 6, 2021.16 	Three bidders participated: AIDEA;
Knik Arm Services, LLC; and Regenerate Alaska, Inc.17 AIDEA secured leases for
seven tracts of land, while Knik Arm Services, LLC, and Regenerate Alaska, Inc.,
each secured a lease for one tract of land.18
When President Biden took office two weeks later, he issued EO 13990,
which directed DOI to conduct a supplemental environmental review of the
Program and, during the pendency of such review, temporarily halt all activities
related to the Coastal Plain oil and gas leases.19 	Section 4(a) of EO 13990
provides:
In light of the alleged legal deficiencies underlying the program,
including the inadequacy of the environmental review required by the
National Environmental Policy Act, the Secretary of the Interior shall,
as appropriate and consistent with applicable law, place a temporary
moratorium on all activities of the Federal Government relating to the
implementation of the Coastal Plain Oil and Gas Leasing Program, as
established by the Record of Decision signed August 17, 2020, in the
Arctic 	National 	Wildlife 	Refuge. 	The 	Secretary 	shall 	review 	the
program and, as appropriate and consistent with applicable law,
conduct 	a 	new, 	comprehensive 	analysis 	of 	the 	potential
environmental impacts of the oil and gas program.20
15 85 Fed. Reg. 78865–66.
16 AR 3314–16.
17 AR 3314–16.
18 AR 3317–18, 3347, 3689, 3695.
19 AR 3349–55.
20 AR 3351.
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Following the President’s directive, on June 1, 2021, Interior Secretary Haaland
issued Secretarial Order 3401 (the “Secretarial Order”), which instructed DOI and
BLM officials to conduct the supplemental environmental review and instituted a
“temporary halt on all Department activities related to the Program in the Arctic
Refuge” while that supplemental review was being conducted. 21 	The temporary
halt extended to “any action[s] to authorize any aspect of the Program, including,
but 	not 	limited 	to, 	any 	leasing, 	exploration, 	development, 	production, 	or
transportation,” and the “process[ing of] any pending or future applications for such
activities.”22 	The Secretarial Order expanded upon the justifications for the
temporary moratorium articulated in EO 13990:
My 	review 	of 	the 	Coastal 	Plain 	Oil 	and 	Gas 	Leasing 	Program
(Program) as directed by EO 13990 has identified multiple legal
deficiencies in the underlying record supporting the leases, including,
but 	not 	limited 	to: 	(1) 	insufficient 	analysis 	under 	the 	National
Environmental Policy Act (NEPA), including failure to adequately
analyze a reasonable range of alternatives in the environmental
impact statement (EIS); and (2) failure in the August 17, 2020, Record
of Decision (ROD) to properly interpret Section 20001 of Public Law
115-97 (Tax Act).23
Also 	on 	June 	1, 	2021, 	DOI 	issued 	a 	Suspension 	of 	Operations 	and
Production Letter (the “SOP Letter”) to each of the lessees, notifying them it was
suspending the leases and associated operations pending the supplemental
21 AR 3362.
22 AR 3363.
23 AR 3362.
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NEPA review.24 	The SOP Letter expanded upon the reasons offered for the
temporary moratorium in the Secretarial Order, and a subsequent amendment
offered further explanation.25
Agency Defendants plan to release a Draft Supplemental EIS for the
Program in the third quarter of 2023.26 	In the meantime, AIDEA, through its
contractors, sought authorizations from DOI to begin the initial stages of oil and
gas 	exploration 	pursuant 	to 	its 	leases, 	such 	as 	conducting 	archeological
investigations 	and 	seismic 	exploration.27 	Citing 	the 	Moratorium, 	Federal
Defendants refused to authorize AIDEA or its contractors to proceed with any
activities relating to the leases.28 AIDEA then brought this action on November 4,
2021, 	challenging 	both 	the 	President’s 	issuance 	of 	EO 	13990 	and 	DOI’s
implementation of the Moratorium.29 	The other two lessees have entered into
24 AR 3364–65, 3714–17.
25 AR 3364–65, 3404–05, 3714–17.
26 Agency Defendants initially represented to the Court that they planned to release the Draft
Supplemental EIS in the second quarter of 2023. Docket 63 at 16. However, in a related case,
Gwich’in Steering Committee v. Haaland, Agency Defendants filed a more recent status report
updating that timeframe to the third quarter of 2023. Defs.’ Status Report on Issuance of Draft
Suppl. Environmental Impact Statement at 2, Gwich’in Steering Comm. v. Haaland, Case No.
3:20-cv-00204-SLG, (D. Alaska Apr. 28, 2023), ECF No. 95.
27 AR 3370–98.
28 AR 3399–3400.
29 Docket 1.
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agreements with BLM in which BLM cancelled and rescinded their leases and
refunded their bid and initial rental payments.30
In 	their 	complaint, 	Plaintiffs 	allege 	that 	the 	Moratorium 	violates 	the
Administrative Procedure Act (the “APA”), 5 U.S.C. § 551 et seq., because it was
put in place without an opportunity for the public to comment on it, is contrary to
law, unlawfully withholds or unreasonably delays agency action, and is arbitrary
and capricious.31 They also allege that EO 13990 is an ultra vires act that exceeds
the 	President’s 	authority.32 	Plaintiffs 	seek 	declaratory 	relief, 	a 	permanent
injunction vacating Section 4(a) of EO 13990 and the Moratorium, and an order
compelling 	Agency 	Defendants 	to 	implement 	the 	leasing 	and 	development
program.33
For the purposes of this order, the Court considers the “Moratorium” to
encapsulate Agency Defendants’ efforts to implement the directive in EO 13990
by temporarily suspending implementation of the Program and the leases issued
pursuant thereto. The Moratorium therefore includes issuance of Secretarial Order
3401, the SOP Letter, the responses to AIDEA and its contractors’ attempts to
conduct oil-and-gas-related activities on the lands leased pursuant to the Program,
30 AR 3782–92.
31 Docket 7 at 27–32, ¶¶ 115–48.
32 Docket 7 at 32–33, ¶¶ 149–51.
33 Docket 7 at 33–34.
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and the withholding of any further actions to implement the Program pending the
ongoing NEPA review.34 	The Court considers Agency Defendants’ supplemental
environmental review aimed at correcting alleged legal deficiencies to be the
Moratorium’s primary justification, but this review remains ongoing and did not
itself serve as the formal vehicle suspending the Program’s implementation.35
JURISDICTION
There is no dispute that the Court has subject matter jurisdiction over
Plaintiffs’ and the State’s claims regarding Agency Defendants’ actions taken to
implement 	the 	Moratorium 	pursuant 	to 	28 	U.S.C. 	§ 	1331, 	which 	“confer[s]
jurisdiction on federal courts to review agency action, regardless of whether the
APA of its own force may serve as a jurisdictional predicate.”36
The parties dispute whether Plaintiffs and the State have standing to assert
an ultra vires claim against the President with respect to his issuance of EO
13990.37 To establish standing, a litigant must demonstrate that (1) it suffered an
“injury in fact,” (2) the injury is “fairly traceable” to the challenged conduct, and (3)
34 AR 3362–65, 3395–96, 3399–3400, 3404–05, 3702–03, 3713–19.
35 See Docket 66 at 15–16 (maintaining that Defendants conflate BLM’s supplemental NEPA
analysis with the Moratorium itself, noting that Agency Defendants could have conducted the
supplemental review without imposing the Moratorium).
36 Califano v. Sanders, 430 U.S. 99, 105 (1977).
37 Compare Docket 60 at 18–19 (alleging that Plaintiffs have standing), with Docket 63 at 21–26
(alleging Plaintiffs do not have standing and therefore the Court lacks subject matter jurisdiction
over the claim against the President).
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it is likely that a favorable decision will redress the injury.38 	To establish an injury
in fact, a plaintiff must identify “an invasion of a legally protected interest” that is
“concrete,” 	“particularized,” 	and 	“actual 	or 	imminent, 	not 	conjectural 	or
hypothetical.”39 Plaintiffs and the State’s asserted injuries pass this hurdle. AIDEA
Plaintiffs complain that they have been unable to proceed with the activities critical
to developing AIDEA’s leases, such as archeological and seismic work, meaning
that they cannot reap the revenue, employment opportunities, and information
gathering that would result from commencing work on the leases.40 	The State
similarly points to the revenue it has lost in the form of lease payments and taxes
due to the Moratorium. 41
To demonstrate a “fairly traceable” connection between an injury and an
action, a plaintiff need only show “no more than de facto causality.”42 Plaintiffs and
the State’s alleged injuries are fairly traceable to EO 13990 because that Executive
Order directed DOI to suspend the leases and all related activities.43 	DOI
expressly acted at the President’s direction when issuing Secretarial Order 3401
38 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (alterations omitted).
39 Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016), as revised (May 24, 2016) (citation
omitted).
40 Docket 60 at 18–19.
41 Docket 59 at 16–17.
42 Dep’t of Com. v. New York, 139 S. Ct. 2551, 2566 (2019) (citation omitted).
43 See AR 3351 (“[T]he Secretary of the Interior shall . . . place a temporary moratorium on all
activities of the Federal Government relating to the implementation of the Coastal Plain Oil and
Gas Leasing Program . . . .”).
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and implementing the other components of the Moratorium.44 	It is fair to say that
without the President’s issuance of EO 13990, there likely would not have been a
Moratorium, or at least not this moratorium implemented at the time and manner
in which DOI implemented it.
To evaluate redressability, a court considers the relationship between “the
judicial relief requested” and the suffered injury.45 	The Court has the authority to
vacate a President’s ultra vires action and order Agency Defendants to implement
the Program in accordance with the law,46 which is precisely what Plaintiffs and
the State are seeking and what would redress their injuries.47
Federal Defendants’ arguments to the contrary are unavailing. 	They point
to two cases in which a district court rejected challenges to an executive order that
allegedly “delayed or derailed the promulgation of desired rules.”48 	Each case
challenged 	the 	same 	executive 	order 	that 	directed 	agencies 	to 	repeal 	two
regulations for every new regulation issued, offset costs from new regulations by
eliminating costs from existing regulations, and comply with an “annual cap” on the
44 See AR 3362 (“This Order is taken in furtherance of Section 4(a) of Executive Order (EO)
13990 . . . .”).
45 California v. Texas, 141 S. Ct. 2104, 2115 (2021) (citation omitted).
46 See Clinton v. City of New York, 524 U.S. 417, 433 n.22 (1998).
47 Docket 7 at 33–34; Docket 22 at 12–13.
48 Docket 63 at 24 (first citing California v. Trump, 613 F. Supp. 3d 231 (D.D.C. 2020); and then
citing Pub. Citizen, Inc. v. Trump, 435 F. Supp. 3d 144, 152 (D.D.C. 2019)); California, 613 F.
Supp. 3d at 236.
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total incremental costs allowed from all federal regulations issued in a given year.49
Each court found that the plaintiffs lacked standing because they could not show
that the challenged executive order caused any material delay to the particular
rules about which the plaintiffs complained and the agency defendants presented
evidence showing that the delay or rescission of the rules was not connected to
the executive order.50
Here, there is no genuine dispute that EO 13990 is causally connected to
the Moratorium. The Executive Order not only expressly orders the Moratorium,51
but the Secretarial Order and SOP Letter also expressly state the agency action
was taken in furtherance of the Executive Order.52 	Thus, vacatur of EO 13990
would redress Plaintiffs’ claimed injuries.
Given the above, the Court finds that Plaintiffs and the State meet the
requirements for standing to challenge EO 13990. 	As a result, the Court has
subject matter jurisdiction over the ultra vires claim pursuant to 28 U.S.C. § 1331,
which vests the Court with jurisdiction over “all civil actions arising under the
Constitution, laws, or treaties of the United States.”
49 See California, 613 F. Supp. 3d at 236–37 (describing the nature of the claims at issue in both
that case and Public Citizen).
50 Id. at 244.
51 AR 3351.
52 AR 3362, 3364.
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LEGAL STANDARD
Plaintiffs maintain that EO 13990 exceeds the President’s statutory and
constitutional authority.53 While a President’s actions are not reviewable under the
APA,54 	a 	court 	may 	review 	an 	executive 	order 	to 	determine 	whether 	it 	is
constitutional and whether the President acted within his statutory authority.55
Plaintiffs 	and 	the 	State 	also 	seek 	review 	of 	Agency 	Defendants’
implementation of the Moratorium pursuant to the APA.56 Section 706 of the APA
provides that a “reviewing court shall . . . hold unlawful and set aside agency
action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of
discretion, . . . otherwise not in accordance with law[,] . . . [or] in excess of statutory
jurisdiction, authority, or limitations.” 57
53 Docket 60 at 19–20.
54 See Dalton v. Specter, 511 U.S. 462, 470 (1994) (“The actions of the President, in turn, are
not reviewable under the APA because . . . the President is not an ‘agency.’” (citation omitted)).
55 See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (“The President’s
power, if any, to issue [an executive] order must stem either from an act of Congress or from the
Constitution itself.”); City & Cnty. of San Francisco v. Trump, 897 F.3d 1225, 1235 (9th Cir. 2018)
(holding President lacked authority to issue executive order directing agencies to withhold funds
appropriated by Congress to punish localities that adopted “sanctuary” policies).
56 Plaintiffs and the State filed motions for summary judgment pursuant to Federal Rule of Civil
Procedure 56, which is an appropriate mechanism to seek review of an agency action. Docket
59 at 2; Docket 60 at 7, 17–18; Occidental Eng’g Co. v. INS, 753 F.2d 766, 770 (9th Cir. 1985).
But see Alaska L. Civ. R. 16.3 (providing procedures for briefing administrative agency appeals).
Defendants also request judgment in their favor, effectively making their opposition filings cross-
motions for summary judgment pursuant to Rules 56 and 7(b). Docket 63 at 8 n.1; Docket 64 at
13–14; Docket 65 at 9.
57 5 U.S.C. § 706.
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DISCUSSION
Plaintiffs’ 	and 	the 	State’s 	challenges 	to 	both 	EO 	13990 	and 	Agency
Defendants’ 	implementation 	of 	the 	Moratorium 	allege 	the 	lack 	of 	statutory
authority. 	Therefore, the Court begins by considering whether any statutory
authority exists for the Moratorium. If there is authority for Agency Defendants to
implement the Moratorium, then it would stand to reason that the President acted
consistent with his presidential powers when issuing EO 13990 since he directed
Agency Defendants to act consistent with their authority.58 	After considering the
legal authority underpinning the Executive Order and the Moratorium, the Court
considers Plaintiffs’ and the States’ APA claims against Agency Defendants.
I. 	The 	Tax 	Act 	provides 	authority 	for 	both 	EO 	13990 	and 	Agency
Defendants’ implementation of the Moratorium, authority which no
other source of law undermines.
Plaintiffs and the State maintain that Congress, not the executive branch,
has the power to manage federal lands and that the Executive Order and
Moratorium violate the mandate of the Tax Act and the amendment to ANILCA to
provide for an oil and gas leasing program on the Coastal Plain.59 	Plaintiffs also
allege that the Moratorium constitutes “an unlawful withdrawal” of public lands
58 AR 3351.
59 Docket 60 at 20, 24 (first citing U.S. Const. art IV, § 3 cl. 2; and then citing Tax Act § 20001).
The State also alleges that “DOI cannot cancel the Coastal Plain leases because to do so would
violate the Tax Act.” Docket 59 at 25.
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because it did not comply with the Federal Land Policy and Management Act of
1976’s (“FLPMA”) withdrawal requirements.60
Federal Defendants respond that the Moratorium does not violate any
federal statute and that the President has broad constitutional latitude to formulate
policy and implement statutory mandates within the confines of federal law, which
they claim the President did here by including within the Executive Order a
“savings” clause cabining the Interior Secretary’s authority to those actions that
are “appropriate and consistent with applicable law.”61 	Intervenor-Defendants
similarly maintain that DOI’s efforts to suspend temporarily the Program leases are
“consistent with [DOI’s] authority to fix legal problems and manage lands, and no
statute 	imposes 	other 	directives 	or 	processes 	with 	which 	Interior 	failed 	to
comply.”62
A. 	The Moratorium’s Temporary Duration and Limited Scope
As an initial matter underlying the Moratorium’s legality, the Court highlights
what are perhaps the Moratorium’s most critical elements: its temporary duration
and limited scope. 	Plaintiffs and the State characterize the Moratorium as
60 Docket 60 at 30–31.
61 Docket 63 at 21–22.
62 Docket 64 at 13 (citation omitted); see also Docket 65 at 8 (“It is well within the Secretary’s
discretion to order such a [NEPA] supplementation as well as to protect the public resources at
issue by issuing a temporary suspension of leases to maintain the status quo ante while the
supplemental EIS process is undertaken.” (citation omitted)).
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“indefinitely” suspending the ROD prepared in conjunction with the Program.63
This characterization is inaccurate. EO 13990 expressly directs only a “temporary
moratorium,” 	and 	Secretarial 	Order 	3401 	orders 	a 	“temporary 	halt 	on 	all
Department activities related to the Program.”64 	The SOP Letter also connotes
temporality: “While this SOP is in place, no lease operations may transpire on the
leases, the terms of the leases are tolled, and lease rentals are suspended.”65
These documents do not suspend the ROD, EIS, or any other component of the
Program’s NEPA review or other prerequisites. And they contain no statement or
suggestion that the Program, including the ROD, is terminated or that AIDEA’s
leases are cancelled. 66 	Agency Defendants have instead evidenced an intent to
continue implementing the Program.67 	The supplemental NEPA review is the
current stage of that implementation.68 Agency Defendants intend to release their
Draft Supplemental EIS later this year, and they have outlined the steps that will
63 See Docket 59 at 3 (“In effect, DOI and BLM accomplished the President’s desired
moratorium by suspending and disregarding the ROD indefinitely.”); Docket 60 at 39–40 (“By
indefinitely suspending all Coastal Plain leases and indefinitely refusing to process any right-of-
way applications, . . . Agency Defendants are unlawfully and unreasonably delaying the
completion of these discrete, required actions.” (footnote omitted)).
64 AR 3351 (emphasis added); AR 3362 (emphasis added).
65 AR 3365 (emphasis added).
66 The SOP Letter notes that DOI eventually may determine to “void[]” the leases, but that is not
the case now and the validity of such an action is not before the Court. AR 3365.
67 See AR 3369 (establishing timeframe for issuance of a “record of decision selecting a
program alternative”).
68 AR 3368–69; Docket 63 at 16.
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follow thereafter as they continue to implement the Program.69 	As such, the
Moratorium has a finite, even if inexact, endpoint, and it is limited to a suspension
of lease operations. Agency Defendants established these fundamental elements
at the outset of the process reinitiating the supplemental environmental review,
and there is no indication that they have deviated or plan to deviate significantly
from their stated plan. 70
Contrary to Plaintiffs’ and the State’s assertions,71 a temporary pause in
implementing a program is not a decision to indefinitely cease its implementation.
An agency may terminate a moratorium and authorize activities it previously
paused.72 	Additionally, the temporary pause implemented here does not violate
any express deadlines in any statute. 	The Tax Act mandated only that DOI hold
one lease sale within four years of its enactment and another within seven years
of its enactment.73 	The first lease sale was held nearly one year prior to the
statutory deadline; the second lease sale must occur before December 22, 2024—
69 Supra note 29; see also AR 3369 (predicting release of new ROD within approximately nine
months following release of Draft Supplemental EIS).
70 See AR 3369 (establishing timeframe and purpose of the supplemental EIS process).
71 See Docket 59 at 3 (characterizing Moratorium as “suspending and disregarding the ROD
indefinitely”); Docket 60 at 29 (characterizing Moratorium as “indefinite” suspension of leases
and “indefinitely freezing all federal actions necessary to effectuate any development,
production, or transportation of oil and gas”).
72 Cf. Citizens for Clean Energy v. U.S. Dep’t of the Interior, 621 F. Supp. 3d 1165, 1169 (D.
Mont. 2022) (describing BLM’s termination of its previously issued coal leasing moratorium).
73 Tax Act § 20001(c)(1)(B)(ii).
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after the Supplemental EIS is due to be completed.74 There are no other deadlines
in the Tax Act, such as deadlines to issue rights-of-way or easements or to
authorize surface development. 75
These critical points guide the Court’s analysis; yet throughout their briefing,
Plaintiffs and the State appear to conflate the statutory mandate to conduct two
lease sales by dates certain with a requirement to perform certain post-sale actions
without any pause or moratorium.76 	But the Tax Act contains only the two
deadlines by which Interior must hold the lease sales; no other specific deadlines
are set out in the Tax Act for the Program.77 When Congress imposes an explicit
deadline for one agency action in a statute but not for another action, “it seems
likely that Congress acted intentionally in omitting the . . . deadline [for a different
agency action].”78 	In the absence of other statutorily mandated timeframes, the
74 Id. § 20001(c)(1)(B)(ii).
75 See generally id. § 20001.
76 See, e.g., Docket 60 at 25 (“[T]he issuance of leases, rights-of-way, and easements
necessary to explore for, develop, produce, or transport oil and gas in the Coastal Plain is not a
matter of discretion for the Agency Defendants. Rather, Agency Defendants are bound by
statute to issue all such leases, rights-of-way, and easements.”); Docket 60 at 28 (“[T]he Tax Act
mandates a lease sale by December 2021, followed by the issuance of any rights-of-way or
easements . . . . Agency Defendants have attempted to nullify this congressional deadline by
issuing leases before December 2021 only to indefinitely suspend them well beyond that date.”
(citation omitted)); Docket 66 at 6 (“The Secretary also is not issuing rights-of-way or easements
necessary to carry out the Program, a fact that the Federal Defendants do not dispute. . . . As
such, the ROD has been effectively suspended and rescinded.” (citation omitted)).
77 Tax Act § 20001(c).
78 See Gen. Motors Corp. v. United States, 496 U.S. 530, 538 (1990) (holding that statutory
requirement that EPA act on a state plan within four months applied only to original state plan,
not to revised state plan).
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agency is only required to complete the post-lease-sale components of the
Program within a reasonable period of time.79
B. 	The Tax Act
The Court next considers whether the Moratorium and EO 13990 are within
the executive branch’s authority. 	Plaintiffs and the State are correct that the
executive branch can act only in accordance with its own constitutional powers or
the expressed or implied will of Congress.80 	In many cases, federal statutes are
the 	appropriate 	starting 	point 	to 	determine 	whether 	the 	executive 	branch
possesses the authority to act.81
Here, the parties focus much of their briefing on the Tax Act. 	Although
Article IV of the Constitution gives Congress the authority to regulate public lands,
Congress, through the Tax Act, expressly delegated the authority to “establish and
administer” the Program on the Coastal Plain to the Interior Secretary.82 	This
broad grant of authority accords to DOI, under the supervision of the President as
79 See 5 U.S.C. § 706(1) (directing a reviewing court to “compel agency action unlawfully
withheld or unreasonably delayed”); cf. Indep. Mining Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir.
1997) (holding that the General Mining Act of 1872 “provided no express timetable or deadline
for the issuance of the patents” and, “[a]t most, . . . implie[d] that the issuance must be
completed within a reasonable time, or . . . ‘expeditiously’ under the circumstances”).
80 City & Cnty. of San Francisco, 897 F.3d at 1233 (citing Youngstown, 343 U.S. at 585, 637–38
(Jackson, J., concurring)).
81 See, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2408 (2018) (reviewing the Immigration and
Nationality Act’s plain language to determine whether the President has discretion to place entry
restrictions on the nationals of eight foreign countries).
82 Tax Act § 20001(b)(2)(A).
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chief executive,83 the authority to implement and operate the Program, provided it
does so in accordance with all applicable federal laws. 	By using broad language
directing the Interior Secretary to administer the Program with no timetable apart
from the two deadlines for the mandated lease sales,84 Congress left the timetable
for the vast majority of the Program’s implementation to DOI’s discretion.85 	This
includes the discretion to temporarily pause the Program while ensuring NEPA
compliance.
As Plaintiffs point out, the decision of whether to “establish and administer”
the Program is not subject to DOI’s or the President’s discretion.86 	But this does
not mean, as Plaintiffs maintain, that Congress explicitly or implicitly intended to
limit the President’s authority to direct DOI to pause the Program while conducting
a supplemental environmental review. To the contrary, Congress authorized DOI
to suspend leases by virtue of the Tax Act’s reference to the NPRPA, which
expressly allows the Interior Secretary to “direct or assent to the suspension of
83 See Seila L. LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2211 (2020) (“In our
constitutional system, the executive power belongs to the President, and that power generally
includes the ability to supervise and remove the agents who wield executive power in his stead.
. . . The Constitution requires that such officials remain dependent on the President . . . .”).
84 The Tax Act’s provisions governing the Program take up just over one page of space in the
186-page statute. See generally Tax Act § 20001.
85 Cf. Dep’t of Com. v. New York, 139 S. Ct. 2551, 2568 (2019) (observing that the Census Act
leaves much of its implementation to the Secretary of Commerce’s discretion given its broad
language).
86 Docket 60 at 10, 24–25.
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operations and production on any lease or unit.”87 The actions taken to implement
the 	Moratorium 	are 	precisely 	within 	this 	grant 	of 	authority: 	DOI 	temporarily
suspended the leases issued from the 2021 sale.88 	There simply is no language
within the Tax Act that limits the President’s authority to order—or DOI’s authority
to implement—a temporary suspension of the Program leases while the agency
undertakes supplemental environmental review. The cases the State cites for the
proposition that “[t]he ROD could have remained in effect while BLM prepared
supplemental NEPA analysis”89 do not suggest that Agency Defendants lack
authority to suspend the Program’s implementation while supplementing its NEPA
analysis. Those cases instead suggest only that an agency need not always—but
still may have authority to—vacate or suspend an underlying action while engaging
in supplemental NEPA analysis.90
87 42 U.S.C. § 6506a(k)(2); see also United States v. Merrell, 37 F.4th 571, 576 (9th Cir. 2022)
(“Congress is . . . presumed to know existing law pertinent to any new legislation it enacts . . . .”
(quoting United States v. LeCoe, 936 F.2d 398, 403 (9th Cir. 1991))).
88 See AR 3365 (“[T]he Department has concluded it is necessary to suspend the . . . lease(s) . .
. . While this [suspension of operations and production] is in place, no lease operations may
transpire on the leases, the terms of the leases are tolled, and lease rentals are suspended.”).
89 Docket 66 at 16 (first citing Diné Citizens Against Ruining Our Env’t v. Haaland, 59 F.4th
1016, 1031 (10th Cir. 2023); and then citing Defs. of Wildlife v. Bureau of Ocean Energy Mgmt.,
Regul., & Enf’t, 871 F. Supp. 2d 1312, 1339 (S.D. Ala. 2012)).
90 See Diné, 59 F.4th at 1032 (concluding that the NEPA regulations’ “silence” on whether an
agency must vacate or suspend an action while supplementing a NEPA review “lends support to
BLM’s argument that vacatur during supplemental analysis is not mandatory”); Defs. of Wildlife,
871 F. Supp. 2d at 1334, 1339 (finding that BOEM did not violate NEPA by issuing leases during
pendency of supplemental environmental review).
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Plaintiffs 	nonetheless 	argue 	that 	the 	NPRPA’s 	suspension 	provision
“pertains to specific leases based on site-specific considerations. 	It does not
provide the Secretary blanket authority to issue a categorical suspension of
operations across all leases . . . .” 91 	Plaintiffs also allege that the Tax Act’s
“mandate for oil and gas development” supersedes the NPRPA’s suspension
provision due to the inclusion in the Tax Act’s mandate of the phrase “except as
otherwise provided in this section.”92
Both arguments are unavailing. The NPRPA uses broad language allowing
the Interior Secretary to suspend operations “on any lease or unit.”93 	There is no
language within the Tax Act or the NPRPA’s suspension provision requiring “site-
specific considerations,” but even if there were, Agency Defendants may be
making “site-specific considerations” as part of the Supplemental EIS process.94
As for the Tax Act’s mandate for oil and gas development, there is nothing in that
91 Docket 60 at 28 n.8.
92 Docket 60 at 28 n.8.
93 42 U.S.C. § 6506a(k)(2) (emphasis added).
94 BLM’s notice of intent to prepare the Supplemental EIS states that BLM plans to consider
whether to “[d]esignate certain areas of the Coastal Plain as open or closed to leasing . . . [and]
prohibit surface infrastructure in sensitive areas.” AR 3368. BLM’s Supplemental EIS also will
“evaluate impacts to various surface resources including, but not limited to, caribou, polar bears,
birds, vegetation, and surface waters including wetlands.” AR 3368–69. By evaluating whether
“certain” areas should be open or closed to leasing, considering whether to prohibit impacts to
“sensitive” areas, and evaluating impacts to protected species and resources that inherently
vary across the Coastal Plain, Agency Defendants may be making “site-specific considerations”
as they conduct the supplemental NEPA review that will guide the manner in which they
implement the Program and, if and when appropriate, allow operations to proceed on the issued
leases.
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mandate 	to 	suggest 	that 	Agency 	Defendants 	cannot 	temporarily 	pause
implementation of the Program to ensure it complies with the law and, upon making
that determination, resume the Program’s implementation. 	Notably, Congress
included the suspension provision within the NPRPA notwithstanding the NPRPA’s
mandate to DOI to “conduct an expeditious program of competitive leasing of oil
and gas.”95 	If DOI can suspend lease operations and production notwithstanding
the NPRPA’s mandate for “expeditious” development, clearly it can do so when
implementing 	the 	Tax 	Act, 	which 	does 	not 	expressly 	call 	for 	“expeditious”
development but does specifically impose two deadlines for holding lease sales.
Plaintiffs’ contention that this interpretation results in “unfettered” discretion
or authority for DOI to “indefinitely suspend” the Program again conflates a
temporary pause with a permanent pause.96 DOI’s discretion is constrained by the
Tax Act’s mandate to implement the Program and conduct the two lease sales
within the required timeframe and the APA’s requirement to act within a reasonable
time.97 	As intimated above, Congress could have included additional deadlines
requiring Agency Defendants to issue any subsequent approvals by a date certain,
but it chose not to do so.98 	Rather, the Tax Act accords to DOI the discretion to
95 42 U.S.C. § 6506a(a) (emphasis added).
96 Docket 67 at 16–17.
97 See supra note 86.
98 Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes particular
language in one section of a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely in the disparate inclusion or
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implement the Program in a manner consistent with the Tax Act and consistent
with ANILCA’s purposes, which include environmental conservation along with the
newly added purpose of the oil and gas program, and also consistent with other
applicable federal laws, including NEPA.99
Plaintiffs also read the Tax Act to foreclose application of the NPRPA’s
suspension authority to “post-sale” activities such as easement or right-of-way
applications.100 Although these activities take place after the issuance of a lease,
they 	are 	an 	essential 	component 	of 	the 	“administration 	of 	lease 	sales.”101
Moreover, the Tax Act itself accords DOI discretion in issuing easements or rights-
of-way, as DOI is directed to issue those easements and rights-of-way that it
determines are “necessary to carry out” the Program.102 	This includes the
discretion, subject to the APA’s requirements governing agency action, to decline
to issue easements or rights-of-way at a time when they are not necessary to the
Program’s implementation.
exclusion.” (alteration in original) (citations omitted)).
99 See ANILCA § 303(2)(B) (listing ANWR’s purposes); 163 Cong. Rec. S7539–40 (daily ed.
Nov. 30, 2017) (Murkowski Floor Statement).
100 Docket 67 at 16.
101 Tax Act § 20001(b)(3).
102 Id. § 20001(c)(2); cf. City & Cnty. of San Francisco v. U.S. Citizenship & Immigr. Servs., 944
F.3d 773, 803 (9th Cir. 2019) (noting the “broad regulatory authority” Congress vests in agencies
through the use of statutory language such as “appropriate and necessary” (quoting 42 U.S.C. §
7412(n)(1)(A))).
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Next, Plaintiffs rely on a series of cases that they allege provide support for
the proposition that the Tax Act does not confer authority to Agency Defendants to
institute the Moratorium.103 	These cases, which touch on the “major questions
doctrine”,104 are inapplicable. This is not a case involving an agency’s assertion of
“sweeping authority,”105 such as a statutory interpretation that would allow an
agency to “substantially restructure the American energy market”106 or “cancel[]
roughly $430 billion of federal student loan balances, completely erasing the debts
of 20 million borrowers.”107 The Moratorium affects only a total of nine oil and gas
leases held by three lessees over a discrete portion of land in northern Alaska, and
it is both temporary and limited in nature. 	And while some out-of-circuit courts
have held that “a decision to reconsider a rule does not simultaneously convey
authority to indefinitely delay the existing rule pending that reconsideration,”108
Agency Defendants are not indefinitely delaying a rule because the Moratorium is
103 Docket 60 at 29 (first citing Tax Act § 20001(b)(2)(A); then citing West Virginia v. EPA, 142 S.
Ct. 2587, 2607 (2022); and then citing Nat. Res. Def. Council v. Nat’l Highway Traffic Safety
Admin., 894 F.3d 95, 111 (2d Cir. 2018)); Docket 67 at 11–12 (first citing FEC v. Ted Cruz for
Senate, 142 S. Ct. 1638, 1649 (2022); then citing West Virginia, 142 S. Ct. at 2607–08; then
citing Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2486 (2021); then citing Whitman v. Am.
Trucking Ass’ns, 531 U.S. 457, 468 (2001); and then citing FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 125-26 (2000)).
104 See, e.g., West Virginia, 142 S. Ct. at 2610 (“Under our precedents, this is a major questions
case.”).
105 Ala. Ass’n of Realtors, 141 S. Ct. at 2486.
106 West Virginia, 142 S. Ct. at 2610.
107 Biden v. Nebraska, 143 S. Ct. 2355, 2362 (2023).
108 Nat. Res. Def. Council, 894 F.3d at 111–12 (citing Clean Air Council v. Pruitt, 862 F.3d 1, 9
(D.C. Cir. 2017)).
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not of indefinite duration, and the actions being delayed—approving requests to
begin conducting oil and gas activities or issuing easements or rights-of-way—are
adjudicatory actions, not rules.109
C. 	Other Authorities
The Court next considers whether ANILCA, FLPMA, or any other federal
statute 	or 	caselaw 	precludes 	Agency 	Defendants 	from 	implementing 	the
Moratorium or strips the President of authority to order the same.
1. 	ANILCA
Plaintiffs 	maintain 	that 	the 	Moratorium 	violates 	ANILCA 	because 	of
ANILCA’s newly added purpose “to provide for an oil and gas program on the
Coastal Plain.” 110 	But as discussed above, a temporary moratorium is not
evidence that Agency Defendants have abandoned or plan to stop implementing
the Program. 	And the Tax Act otherwise left ANILCA untouched, including its
purposes 	related 	to 	environmental 	conservation 	and 	protection. 111 	The
Moratorium is intended to allow Agency Defendants to conduct what they describe
as a proper review of the Program’s environmental impacts, thereby satisfying
ANILCA’s other purposes without undermining its newly added purpose to conduct
an oil and gas program. 	Since the Moratorium furthers ANILCA’s purposes and
109 See discussion infra Section II.A.
110 Docket 60 at 24 (citing Tax Act § 20001(b)(2)).
111 ANILCA § 303(2)(B).
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ANILCA contains no provisions limiting Agency Defendants’ authority to institute a
temporary moratorium on the oil and gas program, the Moratorium does not violate
ANILCA.
2. 	FLPMA
Plaintiffs assert that the Moratorium constitutes a “withdrawal” as defined by
FLPMA because it precludes oil and gas activities on the Coastal Plain and
transfers jurisdiction over the Coastal Plain from BLM to the Interior Secretary.112
FLPMA defines “withdrawal” as
withholding an area of Federal land from settlement, sale, location, or
entry, under some or all of the general land laws, for the purpose of
limiting activities under those laws in order to maintain other public
values in the area or reserving the area for a particular public purpose
or program; or transferring jurisdiction over an area of Federal land,
other 	than 	“property” 	governed 	by 	the 	Federal 	Property 	and
Administrative Services Act, as amended (40 U.S.C. 472) from one
department, bureau or agency to another department, bureau or
agency.113
When withdrawing public lands pursuant to FLPMA, an agency must follow
certain procedures, including public notice requirements, and comply with size and
temporal limits.114 “Removing otherwise eligible and available federal land from oil
and gas leasing can constitute a ‘withdrawal’ . . . .” 115 However, “[t]o withdraw . . .
112 Docket 60 at 30.
113 43 U.S.C. § 1702(j).
114 Yount v. Salazar, Case No. CV11-8171 PCT-DGC, 2014 WL 4904423, at *18 (D. Ariz. Sept.
30, 2014), aff’d sub nom. Nat’l Mining Ass’n v. Zinke, 877 F.3d 845 (9th Cir. 2017).
115 W. Energy All. v. Biden, Case No. 21-CV-13-SWS, 2022 WL 18587039, at *11 (D. Wyo. Sept.
2, 2022).
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means to withhold the parcel of land from sale entirely” rather than an action such
as “cancel[ling] a specific sale to a specific buyer.” 116
The Moratorium does not run afoul of FLPMA. Agency Defendants are not
“withholding” the leased land from “settlement, sale, location, or entry” because
they have not acted to indefinitely prevent oil and gas activity on the leased land.117
The Moratorium does not withhold AIDEA’s leased land from oil and gas leasing
entirely; nor does it reserve any of the leased land for a particular public purpose
or program.
At least one district court has found that a temporary action that delays an
oil and gas leasing program to allow for a supplemental NEPA review does not
constitute a withdrawal subject to FLPMA.118 Plaintiffs, meanwhile, have failed to
identify any authority indicating that a temporary restriction on the use of leased
lands while an agency supplements its NEPA review constitutes a “withdrawal”
within the meaning of the FLPMA. 	Their citation to Mountain States Legal
Foundation v. Hodel is unavailing.119 	The “withdrawal” at issue in that case was
116 Silver State Land, LLC v. Schneider, 843 F.3d 982, 991 (D.C. Cir. 2016).
117 43 U.S.C. § 1702(j).
118 See W. Energy All., 2022 WL 18587039, at *4, *12 (finding no withdrawal under or violation
of FLPMA when BLM delayed a statutorily mandated lease sale to allow additional consideration
of Environmental Assessments in light of federal caselaw (first citing Columbia Riverkeeper v.
U.S. Army Corps of Engrs., Case No. 19-6071 RJB, 2020 WL 6874871 (W.D. Wash. Nov. 23,
2020), and then citing WildEarth Guardians v. Bernhardt, Case No. 16-1724 (RC), 2020 WL
6701317 (D.D.C. Nov. 13, 2020)).
119 Docket 67 at 18–19 (citing Mountain States Legal Found. v. Hodel, 668 F. Supp. 1466, 1474
(D. Wyo. 1987)).
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BLM’s suspension of mineral leasing in one national forest and its failure to act on
lease applications in another national forest that had been pending for up to 12
years.120 BLM took these actions at the request of the U.S. Forest Service, which
asked BLM to delay further processing of any leases pending completion of a final
EIS or until a Forest Plan was completed.121 	In setting aside the suspension, the
U.S. District Court for the District of Wyoming interpreted FLPMA to find that BLM’s
suspension and unreasonable delay of mineral leasing constituted a withdrawal
pursuant to FLPMA.122
The Ninth Circuit has expressly rejected the District of Wyoming’s FLPMA
analysis.123 	In Bob Marshall Alliance v. Hodel, BLM issued 19 oil and gas leases
on the 42,000-acre Deep Creek Further Planning Area in the Lewis and Clark
National Forest.124 BLM did not prepare an EIS prior to issuing the leases; instead,
it prepared an Environmental Assessment that “concluded that such leasing would
have no significant effect on the quality of the human environment.”125 The district
court enjoined the lease issuances, finding that the federal defendants violated
NEPA and the Endangered Species Act by failing to prepare an EIS and address
120 Mountain States, 668 F. Supp. at 1469.
121 Id.
122 Id. at 1474.
123 Bob Marshall All. v. Hodel, 852 F.2d 1223, 1230 (9th Cir. 1988).
124 Id. at 1224–26.
125 Id. at 1226.
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the effects of the leasing on protected species.126 	The Ninth Circuit affirmed the
district court’s ruling as to any leases that allowed surface disturbance without
further government approval.127 As an ancillary issue to the issues on appeal, the
Ninth 	Circuit 	addressed 	whether 	denying 	or 	deferring 	action 	on 	the 	lease
applications 	would 	have 	violated 	FLPMA.128 	The 	Ninth 	Circuit 	rejected 	as
unpersuasive the determination in Mountain States that deferring action on oil and
gas leases can constitute an unlawful administrative withdrawal. Instead, the Ninth
Circuit observed that a refusal to issue mineral leases is “far from removing [the
land at issue] from the operation of the mineral leasing law” and is “a legitimate
exercise of the discretion granted to the Interior Secretary under [the Mineral
Leasing Act].”129
Plaintiffs maintain that Bob Marshall is distinguishable from the instant case
because “it involved BLM’s discretionary decision not to issue a specific lease.”130
But the Moratorium involves Agency Defendants’ discretionary decision pursuant
to the Tax Act, and, by incorporation, the NPRPA, to temporarily pause lease
126 Id. at 1226–27.
127 Id. at 1227.
128 Id. at 1229–30. Through its NEPA review, the Forest Service had considered a “no action”
alternative in which it would have denied or deferred action on the Deep Creek lease
applications, but one defendant asserted that choosing this alternative “would have constituted
an illegal administrative ‘withdrawal’ of Deep Creek from mineral leasing” pursuant to FLPMA.
Id. at 1229. It is in that context that the Ninth Circuit addressed the FLPMA.
129 Id. at 1230.
130 Docket 67 at 19.
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operations pertaining to a confined portion of land. Because the Moratorium does
not remove the leased land on the Coastal Plain from oil and gas development, it
cannot be considered a FLPMA “withdrawal” as the Ninth Circuit has interpreted
that term.
Nor has DOI transferred jurisdiction over the Coastal Plain from BLM to the
Interior 	Secretary. 	Plaintiffs 	are 	correct 	that 	a 	“withdrawal” 	can 	include
“transferring jurisdiction over an area of Federal land . . . from one department,
bureau or agency to another department, bureau or agency.”131 Secretarial Order
3401 directs BLM to act; it does not transfer jurisdiction over the Coastal Plain or
any other portion of ANWR to the secretarial level at DOI.132 Indeed, DOI expressly
“redelegate[d]” the Interior Secretary’s authority to implement the Tax Act to BLM,
demonstrating that DOI intended for BLM to maintain its jurisdiction over the
Program 	and 	land 	leased 	pursuant 	thereto.133 	As 	such, 	because 	Agency
Defendants did not withdraw public lands or transfer jurisdiction over public lands
between any agencies, there was no requirement for them to follow FLPMA’s land
withdrawal procedures.134
131 43 U.S.C. § 1702(j).
132 See AR 3363 (“The Assistant Secretary for Land and Minerals Management and the Director
of the BLM shall, as appropriate and consistent with applicable law, take appropriate action with
respect to existing leases in light of the direction provided herein.”).
133 AR 3363.
134 See 43 U.S.C. § 1714 (establishing procedures to be followed when the Interior Secretary
“make[s], modif[ies], extend[s], or revoke[s] withdrawals”).
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3. 	Caselaw
Plaintiffs’ citation to Louisiana v. Biden,135 an out-of-circuit district court
decision, is neither controlling nor persuasive. 	The operative statutes at issue
there were not the Tax Act, ANILCA, or FLPMA, but the Outer Continental Shelf
Lands Act (“OCSLA”) and the Mineral Leasing Act (“MLA”).136 That decision rested
on the fact that, when suspending further leasing on the Outer Continental Shelf,
the agency had not followed the process set forth in OCSLA for making changes
to a previously adopted five-year leasing plan.137 But the Tax Act contains no such
delineated process for the executive branch to follow while administering the
Program. 	Rather, the Tax Act contains a one-sentence directive to DOI to
implement the Program.138 And it instructs DOI to do so in a manner similar to the
manner in which it implements the NPRPA oil and gas leasing program, which
expressly authorizes DOI to suspend lease operations.139 Neither the Tax Act nor
the 	NPRPA 	contain 	any 	provisions 	comparable 	to 	OCSLA’s 	provisions 	that
135 622 F. Supp. 3d 267 (W.D. La. 2022).
136 Id. at 275.
137 43 U.S.C. § 1344(e); Louisiana, 622 F. Supp. 3d at 288–89. Notably, the Louisiana court
omits discussion of the President’s authority to withdraw unleased lands pursuant to OCSLA,
which could be construed as authority for a nationwide leasing moratorium. See id. at 288–90
(evaluating ultra vires claim concerning the President’s authority to pause leasing nationwide
without analysis of 43 U.S.C. § 1341(a), which provides that “[t]he President of the United
States may, from time to time, withdraw from disposition any of the unleased lands of the outer
Continental Shelf”).
138 Tax Act § 20001(b)(2)(A).
139 Id. § 20001(b)(3); see also 42 U.S.C. § 6506a(k)(2) (“The Secretary may direct or assent to
the suspension of operations and production on any lease or unit.”).
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establish steps DOI must take in order to effectuate a “revision and reapproval” of
OCSLA’s 	statutorily 	mandated 	program.140 	Nor 	have 	Plaintiffs 	alleged 	any
violation of NPRPA-like procedures applicable to the Program. 	And even if the
“expeditious” portion of the NPRPA’s mandate applies to the Tax Act, Congress
allowed for the possibility of a lease suspension in the implementation of what it
explicitly directed to be an “expeditious” program in the NPRPA.141
With respect to Agency Defendants’ authority to temporarily pause leasing
activities pursuant to the Tax Act, the Court finds Western Energy Alliance v.
Biden142 to be more persuasive than Louisiana. 	In Western Energy Alliance, the
U.S. District Court for the District of Wyoming upheld BLM’s decision to postpone
lease sales required pursuant to the MLA to ensure that the Environmental
Assessments 	prepared 	in 	conjunction 	with 	those 	sales 	satisfied 	then-recent
federal court decisions governing the proper analysis of greenhouse gas emissions
in the NEPA review process.143 	The MLA contains a clear mandate for BLM to
140 See generally Tax Act § 20001; 43 U.S.C. § 1344(e).
141 The State acknowledges Intervenor-Defendants’ argument that “administrative agencies are
assumed to possess at least some inherent authority to revisit their prior decisions,” yet the
State maintains that no such authority exists “when Congress has provided a mechanism
capable of rectifying mistaken actions.” Docket 66 at 8 (quoting Ivy Sports Medicine, LLC v.
Burwell, 767 F.3d 81, 86 (D.C. Cir. 2014)); Docket 64 at 24 (citing Ivy Sports, 767 F.3d at 86).
Unlike other statutes, the Tax Act’s brief provisions governing the Program do not provide a
mechanism for correcting legal errors in the Program’s implementation, so Ivy Sports suggests
that Agency Defendants do have inherent authority to revisit the Program’s implementation.
This inherent authority, coupled with the NPRPA’s explicit grant of authority to suspend lease
operations, is an adequate statutory backdrop against which Agency Defendants can
temporarily pause the Program.
142 2022 WL 18587039.
143 Id. at *8–10 (first citing Rocky Mountain Wild v. Bernhardt, Case No. 2:19-cv-00929-DBB-
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hold lease sales on at least a quarterly basis with respect to certain lands deemed
available for leasing.144 BLM postponed lease sales scheduled for the first quarter
of 2021 shortly after the President issued an executive order directing a nationwide
oil and gas leasing moratorium pending additional NEPA review.145 	Western
Energy Alliance involved the same executive order at issue in Louisiana, but the
District of Wyoming determined that the lands at issue were not “available” within
the 	meaning 	of 	the 	MLA 	since 	BLM 	had 	determined 	that 	their 	underlying
Environmental Assessments “needed additional review and possible reworking
due to recent caselaw.”146 	Here, BLM made a similar determination concerning
the EIS and ROD underlying the Program while implementing a statute with a
significantly less rigid imperative. 	The Tax Act specifies only the dates by which
two lease sales must take place, whereas the MLA requires quarterly lease sales.
If BLM has the authority to postpone a statutorily mandated quarterly lease sale in
order to conduct additional environmental review, it has the authority to postpone
activities on leases when no statutory source commands it to take any actions
beyond the lease sales within a set timeframe.
CMR, 2020 WL 7264914 (D. Utah Dec. 10, 2020); then citing WildEarth Guardians v. Bernhardt,
502 F. Supp. 3d 237 (D.D.C. 2020); and then citing Columbia Riverkeeper, 2020 WL 6874871).
144 30 U.S.C. § 226(b)(1)(A).
145 W. Energy All., 2022 WL 18587039, at *3 (citing Exec. Order No. 14008, 86 Fed. Reg. 7619,
7624–25 (Feb. 1, 2021)).
146 Id. at *9; Louisiana, 622 F. Supp. 3d at 288–90.
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Intervenor-Defendants’ 	citation 	to 	Boesche 	v. 	Udall147 	provides 	further
support for the Moratorium.148 	There, the Supreme Court interpreted the MLA to
grant the Interior Secretary “the power to correct administrative errors . . . by
cancellation of leases in proceedings timely instituted by competing applicants for
the same land.”149 	In Boesche, the Supreme Court recognized DOI’s “general
powers of management over the public lands” and the limited nature of a leasehold
interest in such lands: A leasehold interest in public lands “does not give the lessee
anything approaching the full ownership of a fee patentee,” and so the Interior
Secretary “should have the power, in a proper case, to correct his own errors.”150
Boesche involved a different statute and, as the State points out,151 a
different type of agency error. The Supreme Court also cautioned that its holding
was limited and “do[es] not open the door to administrative abuses.”152 	But there
is no indication in the Tax Act that similar authority to correct administrative errors
does not exist here. 	If DOI can cancel a lease to correct its own errors, it can
temporarily suspend a lease for the same purpose.153 	Boesche also undermines
147 373 U.S. 472 (1963).
148 Docket 65 at 17 n.44, 20 n.55.
149 Boesche, 373 U.S. at 485.
150 Id. at 476, 478.
151 Docket 66 at 11–14.
152 Boesche, 373 U.S. at 485.
153 In another attempt to distinguish Boesche, the State asserts that a violation of a procedural
statute such as NEPA is not the type of substantive error that would authorize DOI to cancel a
lease. Docket 66 at 12–13. The State alleges that “courts often do not vacate agency decisions
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the State’s assertion that the Moratorium’s purpose—which the State contends is
“to consider cancelling already-issued leases”—is “invalid.” 154
Contrary to another of the State’s assertions,155 the Tax Act does not restrict
DOI’s broad authority to manage public lands; it simply directs DOI to implement a
leasing program, just as the MLA and other federal statutes do. 	Likewise,
ANILCA’s purposes, which include environmental conservation,156 do not restrict
DOI’s general managerial powers over the Coastal Plain with respect to the
imposition of a temporary oil and gas moratorium, especially since DOI completed
the first lease sale and currently is supplementing its environmental review and
hence is “provid[ing] for an oil and gas program on the Coastal Plain.”157
Century Exploration New Orleans, LLC v. United States also supports the
proposition that an agency has authority to pause oil and gas activities after a
and, particularly, do not void oil and gas leases because of deficiencies in NEPA analyses.”
Docket 66 at 12 (citations omitted). But DOI has not cancelled AIDEA’s leases. In any event, in
the Ninth Circuit, vacatur is “the presumptive remedy for agency action that violates the NEPA
as reviewed through the APA.” Env’t Def. Ctr. v. Bureau of Ocean Energy Mgmt., 36 F.4th 850,
882 (9th Cir. 2022) (citation omitted), cert. denied sub nom. Am. Petroleum Inst. v. Env’t Def.
Ctr., No. 22-703, 2023 WL 3801206 (U.S. June 5, 2023).
154 Docket 59 at 20, 23–26; Docket 66 at 9–14; see also discussion infra Section II.B.3.b
(discussing validity of the Moratorium’s purpose). Additionally, it cannot be said that the purpose
of the Moratorium is to void AIDEA’s leases or even, as the State asserts, “to consider whether
to reaffirm or void the leases.” Docket 59 at 24. This might be a purpose of the supplemental
NEPA analysis, but it is not the purpose of the Moratorium itself. See AR 3365 (“The BLM will
undertake this additional NEPA analysis to determine whether the leases should be reaffirmed,
voided or subject to additional mitigation measures.” (emphasis added)).
155 Docket 66 at 13–14.
156 ANILCA § 303(2)(B).
157 Tax Act § 20001(b)(2)(B)(iii).
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lease’s issuance.158 	That case involved an oil and gas lessee’s challenge to
Interior’s implementation of two moratoria on deepwater drilling operations in the
Gulf of Mexico following the Deepwater Horizon disaster while new and increased
substantive requirements were developed for drilling operations.159 	The Court of
Federal Claims held that neither of the moratoria breached the plaintiffs’ lease.160
Rather, the court concluded that the two moratoria, which together resulted in an
approximately six-month pause in drilling operations and permitting for such
activities, were “well within the government’s authority under both the terms of the
lease and applicable law.” 161 	Similarly, the court observed that the moratoria’s
“short delay would not have effected a total breach of the lease, particularly in light
of 	the 	absence 	of 	any 	express 	deadlines 	for 	the 	review 	and 	approval 	of”
applications for drilling permits.162
Certainly, the circumstances leading to the Moratorium in the instant case
are completely different from the Deepwater Horizon disaster. 	Yet the legal
framework and analysis outlined in Century Exploration are analogous. 	Neither
AIDEA’s leases nor any federal statute or regulation prohibit the Moratorium or
provide an express deadline by which Agency Defendants must allow oil and gas
158 110 Fed. Cl. 148, 168 (2013), aff’d, 745 F.3d 1168 (Fed. Cir. 2014).
159 Id. at 157–59.
160 Id. at 168.
161 Id. at 167–68.
162 Id. at 168.
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activities on the Coastal Plain to proceed after a lease sale is conducted. And as
discussed below, the leases themselves expressly accord to Agency Defendants
the right to alter the “timing of operations” conducted pursuant to the leases. Thus,
as in Century Exploration, a temporary moratorium on post-sale oil and gas
activities on the Coastal Plain is “well within the government’s authority.” 163
4. 	The Lease Provisions
Although not discussed in detail in the parties’ briefing,164 	the leases
themselves provide support for the Moratorium. 	The leases contain a general
disclaimer 	subjecting 	lessees 	to 	“reasonable 	regulations 	and 	formal 	orders
hereafter promulgated when not inconsistent with, or unduly burdensome on, lease
rights granted or specific provision[s] of this lease.”165 	This language covers the
instant 	situation 	since 	Secretarial 	Order 	3401 	and 	the 	SOP 	Letter 	are 	not
inconsistent with the lease provisions and provide no additional obligations or
burdens on the lessees beyond those associated with delay, which in this context
are not “unduly burdensome.” Similarly, Section 6 of the lease—which pertains to
“minimiz[ing] adverse impacts to the land, air, and water, to cultural, biological,
visual, and other resources, and to other land uses or users”—allows the lessor to
163 Id. at 168.
164 Plaintiffs discuss the lease provisions in one short paragraph of their motion. Docket 60 at
29. The State’s motion contains one sentence asserting that, upon a lease’s cancellation, the
lessee and third-party beneficiaries may be able to assert claims for breach of contract. Docket
59 at 26.
165 E.g., AR 3320.
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subject the lessee to “reasonable measures deemed necessary . . . to accomplish
the intent of this section.”166 	These measures include the “timing of operations,”
thereby expressly reserving to Agency Defendants the right to alter the timing of
operations conducted pursuant to the leases in an effort to minimize adverse
environmental impact, an endeavor with which the supplemental NEPA review
may assist.167 Though not a statutory provision, the lease has the force of law as
a contract between the United States and AIDEA, so these provisions provide
further support for the legality of the Moratorium.168
In short, Plaintiffs have not identified any provision or source of federal law
that precludes a temporary moratorium for the purpose of ensuring that the
Program comports with the law. 	When viewed in conjunction with the broad
discretion that the Tax Act accords DOI, it is clear that the President acted in
accordance with his powers by ordering Agency Defendants to implement a
temporary moratorium while DOI undertook to correct “alleged legal deficiencies”
in its environmental analysis.169 	Consequently, Agency Defendants themselves
166 E.g., AR 3321.
167 E.g., AR 3321.
168 See Peabody Coal Co. v. Navajo Nation, 373 F.3d 945, 951 (9th Cir. 2004) (recognizing that
oil and gas leases “represent a very specialized subset of contracts” governed by an “extensive
federal regulatory scheme” (citation omitted)).
169 AR 3351, 3362. Because the Court finds that EO 13990 orders DOI to take actions that are
authorized by statute, the Court need not consider whether the Executive Order’s savings
clause salvages what Plaintiffs assert is an otherwise ultra vires order. Docket 60 at 21–22.
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also acted in accordance with their powers by implementing the temporary
moratorium.
II. 	The Moratorium does not violate the APA.
Plaintiffs and the State allege three categories of APA violations, namely
that 	Agency 	Defendants 	(1) 	failed 	to 	follow 	the 	APA’s 	notice-and-comment
requirements, (2) arbitrarily and capriciously reversed their position regarding the
Program’s NEPA compliance without adequate factual or legal support or a lawful
purpose, and (3) unlawfully and unreasonably withheld or delayed action to
implement the Program.170 The parties do not dispute that the APA governs these
claims against Agency Defendants.171 Defendants respond that the Moratorium is
not a substantive rule that must follow the APA’s notice-and-comment procedures,
that Agency Defendants have not unlawfully reversed their position regarding the
legality of the NEPA analysis underlying the Program’s implementation, and that
Plaintiffs cannot bring a viable failure-to-act claim.172 	The Court addresses these
arguments in turn.
170 Docket 59 at 19–34; Docket 60 at 32–40; Docket 66 at 5–14; Docket 67 at 19–25; see also
discussion of the State’s additional arguments infra Section II.B.3.
171 Docket 59 at 18–59; Docket 60 at 22–24; Docket 63 at 29; Docket 64 at 21–22; Docket 65 at
14–15.
172 Docket 63 at 26–29, 34–42; Docket 64 at 31–39; Docket 65 at 21–28.
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A. 	Notice-and-Comment Procedures
Plaintiffs 	contend 	that 	Agency 	Defendants’ 	implementation 	of 	the
Moratorium “constitutes a substantive rule subject to notice and comment given
that it leaves agency staff with no discretion to process or approve applications to
perform oil and gas activities on the Coastal Plain.”173 	Plaintiffs point to several
aspects of the Moratorium that they claim make it a substantive rule: its categorical
application to all Coastal Plain leases and activities, the suspension of all leases
on the same day Secretarial Order 3401 was issued, the virtually identical SOP
Letters issued to each of the lessees, and BLM’s informing of each contractor that
it would not process their applications for work on the leases until the supplemental
NEPA review was complete.174
Federal Defendants counter that DOI’s implementation of the Moratorium is
not a substantive rule subject to the APA’s notice-and-comment requirements but
rather an adjudication.175 And even if Secretarial Order 3401 is considered a rule,
Federal Defendants allege it is at most an interpretative rule or clarification of
agency practice rather than a substantive or legislative rule requiring notice and
comment.176 	Federal Defendants add that “neither the Program ROD nor its oil
173 Docket 60 at 33; see also Docket 59 at 22 (“[T]he agencies did not engage in required notice
and comment processes . . . .”).
174 Docket 60 at 34–35.
175 Docket 63 at 34–37 (quoting Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442, 448 (9th
Cir. 1994)).
176 Docket 63 at 37–39.
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and gas leases were established through rule making, so it makes little sense to
suggest that similar (or lesser) action such as modifying the ROD or suspending
the leases would require a rule making.”177
The APA contemplates two primary forms of agency action: rulemaking and
adjudication.178 Rulemaking is the “agency process for formulating, amending, or
repealing a rule.”179 	The APA defines a rule as “the whole or a part of an agency
statement of general or particular applicability and future effect designed to
implement, interpret, or prescribe law or policy or describing the organization,
procedure, or practice requirements of an agency.”180 Adjudication “is virtually any
agency action that is not rulemaking.”181 As the Ninth Circuit explained,
Two 	principal 	characteristics 	distinguish 	rulemaking 	from
adjudication. First, adjudications resolve disputes among specific
individuals in specific cases, whereas rulemaking affects the rights of
broad 	classes 	of 	unspecified 	individuals. 	Second, 	because
adjudications involve concrete disputes, they have an immediate
effect 	on 	specific 	individuals 	(those 	involved 	in 	the 	dispute).
Rulemaking, in contrast, is prospective, and has a definitive effect on
individuals only after the rule subsequently is applied. 182
177 Docket 63 at 36.
178 5 U.S.C. § 551(4)–(7). Defendants also suggest that the leases fall under the APA’s
definition of “licensing,” which in their view is further indication that their suspension should not
be considered a form of rulemaking. Docket 63 at 36 n.10 (quoting 5 U.S.C. § 551(8), (9)).
179 5 U.S.C. § 551(5).
180 Id. § 551(4).
181 Yesler, 37 F.3d at 448 (citing 5 U.S.C. § 551(6)–(7)).
182 Id. (citations omitted).
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An 	agency 	has 	the 	discretion 	to 	“announce 	new 	principles 	during
adjudication” instead of rulemaking.183 Two exceptions limit this discretion: “First,
agencies may not impose undue hardship by suddenly changing direction, to the
detriment of those who have relied on past policy. . . . The second limiting doctrine
is 	that 	agencies 	may 	not use 	adjudication 	to 	circumvent the 	Administrative
Procedure 	Act’s 	rulemaking 	procedures.”184 	These 	procedures 	include 	a
requirement for an agency to issue a notice of proposed rulemaking in the Federal
Register before it proposes a rule and allow public comment on the proposed
rule.185
Applying these principles, the Court finds that the Moratorium is not a rule
subject to the APA’s notice-and-comment procedures. 	Although the Moratorium
reverses Agency Defendants’ prior determination—expressed through the NEPA
review and their carrying out of the lease sale—that the Program comported with
applicable federal laws, the Moratorium does not operate prospectively to affect
the 	rights 	of 	unspecified 	individuals 	in 	the 	future. 	Rather, 	it 	directly 	and
immediately affected the rights of the identified lessees on the Coastal Plain.186
183 Cities of Anaheim, Riverside, Banning, Colton & Azusa v. FERC, 723 F.2d 656, 659 (9th Cir.
1984) (citations omitted); see also Reyes v. Garland, 11 F.4th 985, 991 (9th Cir. 2021) (“An
agency may also exercise its congressionally delegated legislative authority through
adjudicatory proceedings, where ‘new administrative policy [is] announced and implemented
through adjudication.’” (alteration in original) (quoting Montgomery Ward & Co. v. FTC, 691 F.2d
1322, 1328 (9th Cir. 1982))).
184 Anaheim, 723 F.2d at 659 (citations omitted).
185 5 U.S.C. § 553(b)–(d).
186 Cf. Reyes, 11 F.4th at 991 (“But while rules promulgated through . . . formal rulemaking
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Further, neither of the two exceptions that limit an agency’s authority to use
adjudication apply here. 	First, the Moratorium does not result in undue hardship
to the detriment of those who have relied on a previous agency action. Prior to the
Moratorium, the only agency action directly impacting Plaintiffs had been the
issuance of the leases; no work on the leases had begun when the Moratorium
began.187 The impact of the Moratorium’s suspension of AIDEA’s leases was not
“excessive or unwarranted” given that the Moratorium is temporary in nature and
that AIDEA had—but declined—the opportunity to cancel its leases and receive
refunds of its lease payments.188
Second, Agency Defendants did not use adjudication to circumvent the
APA’s 	rulemaking 	procedures. 	A 	circumvention 	of 	the 	APA’s 	rulemaking
procedures occurs when, for example, an agency uses adjudication “to amend a
recently 	amended 	rule” 	or 	“to 	bypass 	a 	pending 	rulemaking 	proceeding.”189
Agency Defendants did not circumvent any rulemaking procedure. 	They chose
adjudication as the Moratorium’s vehicle to temporarily pause implementation of
generally apply prospectively . . . , adjudicatory rules may have a permissible retroactive effect,
even without authorization from Congress, in some circumstances.” (citation omitted)).
187 See Docket 7 at 20–21, ¶¶ 76–83 (describing AIDEA’s efforts to secure its leases, which
were effective beginning January 1, 2021, shortly before issuance of EO 13990 on January 20,
2021).
188 The other two lessees chose to cancel their leases and receive refunds of their lease
payments. AR 3785, ¶ 13; AR 3790, ¶ 13.
189 Union Flights, Inc. v. Adm’r, FAA, 957 F.2d 685, 689 (9th Cir. 1992) (citations omitted).
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the Program; they did not amend an existing rule or bypass a pending rulemaking
proceeding in so choosing.
In short, Secretarial Order 3401 is not broad or general in scope with the
intent to be applied by Agency Defendants to unspecified future leasing. 	Rather,
it is specific and limited to just one EIS for one leasing program. Likewise, BLM’s
actions to implement Secretarial Order 3401—which, as Plaintiffs put it, “prohibit[]
all access for oil and gas activities during the moratorium”190 —fall squarely within
the realm of adjudication rather than rulemaking. 	These actions took the form of
“individual order[s]” issued to the lessees informing each of them of the suspension
of their leases191 and specific responses to AIDEA’s contractors’ requests to
proceed with activities on the leased lands.192 	The Court finds that Agency
Defendants operated within their discretionary authority to use adjudication as the
means 	to 	exercise 	their 	statutory 	authority 	to 	address 	the 	identified 	legal
deficiencies specific to the Program, which involves a finite, limited number of
parties.193
190 Docket 7 at 28, ¶ 123. These actions include BLM’s issuance of the SOP Letter; refusal to
process AIDEA’s contractors’ applications for rights-of-way, easements, or permits; and alleged
“reopening” of the lease sale. Docket 7 at 30, ¶ 133.
191 See SEC v. Chenery Corp., 332 U.S. 194, 202 (1947) (noting agencies may act “by general
rule or by individual order”); AR 3364–65, 3714–17.
192 AR 3395–96, 3399–3400.
193 See Montgomery Ward, 691 F.2d at 1328 (“It is well settled that the decision whether to
proceed by adjudication or rule-making ‘lies in the first instance within the agency’s discretion.’”
(alteration omitted) (quoting NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974))). To the
extent Secretarial Order 3401 or the SOP Letter interprets statutes such as the Tax Act or
redelegates authority within DOI, they could be considered interpretative rules or rules of
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Plaintiffs 	maintain 	that 	the 	Moratorium 	is 	a 	substantive 	rule 	because
Secretarial Order 3401 constrains DOI staff’s discretion to authorize oil and gas
activities on the Coastal Plain and is “binding.”194 	Plaintiffs cite several cases,
including one Ninth Circuit case, Mada-Luna v. Fitzpatrick, that they maintain
support 	their 	position.195 	Agency 	Defendants 	respond 	that 	Mada-Luna 	is
inapposite because it concerned a “general policy constraining implementing
official discretion in a multitude of future, distinct cases.” 196
In Mada-Luna, the Ninth Circuit held that an internal Immigration and
Naturalization Service (“INS”) directive issued to agency officials as an operating
instruction did not violate the notice-and-comment requirements of the APA.197
The 	instruction 	listed 	factors 	that 	INS 	district 	directors 	should 	consider 	in
determining whether to defer immigration action with respect to undocumented
persons.198 	The court held that the instruction was rulemaking but fell within the
“general statements of policy” exception to the notice-and-comment requirements
agency organization, procedure, or practice. Neither of these types of rulemaking requires
adherence to notice-and-comment procedures. 5 U.S.C. § 553(b)(3)(A).
194 Docket 60 at 32–35.
195 Docket 60 at 33 (first citing Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1013 (9th Cir. 1987);
then citing Casa De Md. v. U.S. Dep’t of Homeland Sec., 924 F.3d 684, 702 (4th Cir. 2019); and
then citing Appalachian Power Co. v. EPA, 208 F.3d 1015, 1021 (D.C. Cir. 2000)).
196 Docket 63 at 38.
197 Mada-Luna, 813 F.2d at 1009; see also 5 U.S.C. § 553(b)(3)(A) (exempting “general
statements of policy” from notice-and-comment requirements).
198 Mada-Luna, 813 F.2d at 1008 n.1.
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because it did not establish a “binding norm” that prohibited agency officials from
considering individual facts in individual cases.199 	Mada-Luna 	is inapposite
because Secretarial Order 3401 is not a general statement of policy applicable to
all future agency actions on a particular topic; it is instead an agency adjudication
limited to one EIS—the Program’s EIS.
The other two cases Plaintiffs cite, Casa De Maryland and Appalachian
Power Company, are inapposite for a similar reason: Like Mada-Luna, the former
differentiated 	legislative 	rules 	subject 	to 	notice 	and 	comment 	from 	general
statements of policy, 200 whereas the latter differentiated agency guidance from a
legislative rule to be prospectively enforced against unidentified future persons or
entities.201 	Neither case supports the proposition that the agency action in this
case—directed 	solely 	at 	the 	identified 	lessees 	on 	the 	Coastal 	Plain—is 	a
substantive rule subject to notice and comment.
Because the Moratorium constitutes an adjudication, and the APA’s notice-
and-comment 	procedures 	do 	not 	apply 	to 	agency 	adjudications, 	Agency
199 Id. at 1016–17.
200 See Casa De Md., 924 F.3d at 701–02 (“Plaintiffs argue that DACA's rescission required
notice and comment under the APA because the Rescission Memo is a legislative rule that
mandates how Department officials must act and substantively affects DACA recipients. The
government rejects this premise, countering that the Memo is a general statement of policy.”).
201 See Appalachian Power Co., 208 F.3d at 1021 (“If an agency acts as if a document issued at
headquarters is controlling in the field, if it treats the document . . . as it treats a legislative rule,
if it bases enforcement actions on the policies or interpretations formulated in the document, . . .
then the agency’s document is . . . ‘binding.’” (citation omitted)).
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Defendants 	did 	not 	violate 	the 	APA’s 	notice-and-comment 	procedures 	by
implementing the Moratorium.202
B. 	Reversal of Position
Plaintiffs and the State next allege that Agency Defendants “failed to provide
a reasoned explanation” for reversing their prior position, expressed in separate
litigation 	before 	this 	Court, 	that 	the 	Program 	had 	“satisfied 	all 	legal
requirements.”203 	Federal Defendants respond that “[n]o reversal [of position]
has yet occurred” because the ROD remains in place pending the Supplemental
EIS process currently underway.204 	In the alternative, Federal Defendants assert
that they provided a reasoned explanation for supplementing the Program’s
environmental analysis,205 an argument Intervenor-Defendants echo.206
202 As a result, the Court need not consider the degree to which Secretarial Order 3401
constrains the discretion of DOI staff.
203 Docket 60 at 36; see also Docket 59 at 30–31 (alleging that Agency Defendants contradicted
their prior findings “without acknowledgment or explanation of the contradiction”). That separate
litigation is Gwich’in Steering Comm. v. Haaland, Case No. 3:20-cv-00204-SLG (D. Alaska filed
Aug. 24, 2020), and Native Vill. of Venetie Tribal Gov’t v. Haaland, Case No. 3:20-cv-00223-SLG
(D. Alaska filed Sept. 9, 2020). The Court stayed those cases pending the supplemental NEPA
review currently in progress. Text Order, Gwich’in Steering Comm., Case No. 3:20-cv-00204-
SLG (D. Alaska Feb. 12, 2021), ECF No. 75; Order Re Defs.’ & Pls.’ Unopposed Mot. to Stay
Proceedings, Native Vill. of Venetie, Case No. 3:20-cv-00223-SLG (D. Alaska Sept. 13, 2021),
ECF No. 77.
204 Docket 63 at 39–40.
205 Docket 63 at 40–41.
206 Docket 64 at 31–36; Docket 65 at 25–28.
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1. 	Whether Agency Defendants Changed Positions
The requirement that an agency explain when it changes its position applies
somewhat broadly to a “subsequent agency action undoing or revising” a prior
agency action.207 	This requirement applies to a change in “agency policy,”
although no precedent specifies what, precisely, constitutes an “agency policy” in
this context.208 	A survey of the caselaw suggests that this requirement applies to
any agency practice, interpretation, or position, whether announced through formal
means, such as a rescission of a federal regulation published in the Federal
Register, or less formal means, such as a change in an interpretation of a statute
that arises through an enforcement action or issuance of a ROD.
In FCC v. Fox Television Stations, Inc., the specific change at issue was the
Federal Communications Commission’s (the “FCC”) new interpretation of a federal
prohibition on the use of expletives in certain broadcasts.209 	The FCC’s changed
position surfaced in orders issued to broadcasters whose broadcasts featured
allegedly indecent language that violated the newly revised federal prohibition.210
The Supreme Court held that the FCC’s reversal was not arbitrary or capricious
because the FCC “forthrightly acknowledged that its recent actions have broken
207 FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).
208 See, e.g., Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221–22 (2016) (discussing Fox
and its precursor cases).
209 556 U.S. at 505–10.
210 Id. at 509–13.
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new ground” and it had provided “rational” reasons for the new policy rooted in a
“context-based approach” intended to reduce the widespread use of offensive
language.211 	Other courts have applied the reasoned explanation requirement to
myriad settings, including a new statutory interpretation contained in a formal
federal rule that was inconsistent with an agency’s prior practice,212 a decision that
a 	species 	warranted 	listing 	as 	an 	endangered 	or 	threatened 	species 	that
contradicted a prior listing decision,213 a finding in a ROD concerning the cost-
benefit analysis of a regulation that contradicted the cost-benefit analysis in a prior
ROD,214 and an agency’s agreement to transfer land to a Native corporation to
build a road after concluding in an earlier ROD that the road’s construction would
not be in the public interest. 215
With this caselaw in mind, the Court considers the two specific reversals
Plaintiffs allege: (1) the alleged reversal of the ROD and (2) the alleged reversal of
Agency Defendants’ position regarding the legality of the Program, namely its
NEPA review. Beginning with the first alleged reversal, the Court finds that Agency
Defendants have not yet “undone” or “revised” the ROD because, to date, they
211 Id. at 517–19.
212 Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981–82 (2005).
213 Ctr. for Biological Diversity v. Zinke, 900 F.3d 1053, 1060–62 (9th Cir. 2018).
214 Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 966–68 (9th Cir. 2015) (en
banc).
215 Friends of Alaska Nat’l Wildlife Refuges v. Bernhardt, 381 F. Supp. 3d 1127, 1133, 1139 (D.
Alaska 2019).
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have not issued a revised ROD or other document that purports to rescind or
replace the August 2020 ROD.
As for the second alleged reversal, there is no genuine dispute that Agency
Defendants 	changed 	their 	position 	regarding 	the 	legality 	of 	the 	Program’s
implementation. 	Agency Defendants promulgated the existing EIS and ROD
during the previous presidential administration, defended their legality in litigation
before this Court, and relied on the ROD to conduct the Program’s first lease
sale.216 	Then, 	following 	the 	new 	administration’s 	issuance 	of 	EO 	13990,
Secretarial Order 3401 identified alleged legal deficiencies in the Program’s
implementation, such as a failure to adequately analyze a reasonable range of
alternatives in the EIS and a failure to properly interpret the Tax Act.217 The SOP
Letter expanded upon these deficiencies and identified other potential deficiencies
or concerns warranting additional analysis, such as “compliance with Section 810
of [ANILCA]”218 and the Ninth Circuit’s December 2020 decision in Center for
Biological Diversity v. Bernhardt.219
216 See generally AR 1–3226 (EIS, ROD, and associated notices of availability); AR 3227–3316
(lease sale materials); Fed. Defs.’ Combined Mem. in Opp’n to Pls.’ Mots. for Prelim. Inj.,
Gwich’in Steering Comm., Case No. 3:20-cv-00204-SLG (D. Alaska Dec. 23, 2020), ECF No.
59.
217 AR 3362.
218 AR 3364–65.
219 982 F.3d 723 (9th Cir. 2020).
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The 	issue 	is 	not 	whether 	there 	was 	a 	positional 	change, 	as 	there
indisputably was, but instead whether the positional change rises to the level of a
change that warrants a reasoned explanation. Agency Defendants expressed their
initial position regarding the legality of the Program’s NEPA review in an EIS and
ROD and in litigation defending those documents. Agency Defendants effectuated
their positional change through a Secretarial Order, the SOP Letter, and, to some
extent, subsequent adjudicatory decisions—e.g., the refusal to process AIDEA’s
contractors’ applications to begin archeological and seismic investigations—but
have not done so in a formal instrument such as a ROD. 	The Court agrees with
Plaintiffs and the State that Agency Defendants have changed their position such
that the reasoned explanation requirement applies. Defendants have identified no
caselaw requiring that the reversal be expressed in “a rule or a formal agency
position 	of 	general 	applicability.”220 	Here, 	Agency 	Defendants 	paused
implementation of a program that they had been in the process of implementing
because they changed their view on the program’s legality. 	Such a reversal
constitutes a change in agency policy. 	As a result, the Court moves to the next
step of the analysis, which is to determine if Agency Defendants acknowledged
and adequately explained their new position.
220 Docket 63 at 39.
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2. 	Whether Agency Defendants Provided a Reasoned
Explanation for the Policy Change
Courts do not provide “heightened review” to an agency action that changes
a prior policy.221 	Rather, under Fox, a court’s review focuses on whether (1) the
agency “display[s] awareness that it is changing position,” (2) “the new policy is
permissible under the statute,” (3) “there are good reasons for” the new policy, and
(4) “the agency believes [the new policy] to be better.”222
Here, the Court finds that each of the Fox requirements is met. 	Agency
Defendants acknowledged their change in position from implementing to pausing
the Program by stating in Secretarial Order 3401 and the SOP Letter that they
were aware of the Program’s implementation through the EIS, ROD, and lease
sale and were suspending it due to the identification of legal deficiencies in the
Program’s NEPA review, interpretation of the Tax Act, and compliance with
ANILCA.223 	Although Agency Defendants did not expressly state in Secretarial
Order 3401 and the SOP Letter that they had previously not identified any legal
deficiencies in the Program and had defended that position in litigation, they
acknowledged a departure from their previous position by describing the prior
221 California ex rel. Becerra v. Azar, 950 F.3d 1067, 1096 (9th Cir. 2020) (citing Fox, 556 U.S. at
514).
222 Fox, 556 U.S. at 515 (citation omitted) (emphasis in original).
223 See AR 3362 (quoting EO 13990, which references the ROD); AR 3364–65 (acknowledging
alleged deficiencies or potential deficiencies with the Program’s greenhouse gas analysis,
compliance with section 810 of ANILCA, and interpretation of the Tax Act, which were part of the
“NEPA documents underlying the competitive lease sale”).
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NEPA review and explaining the basis for their current position that the prior NEPA
review was legally deficient. 224 The caselaw does not require Agency Defendants
to be more explicit, as they simply must “display awareness that [they are]
changing position,”225 which they have done.
As for the remaining factors, Agency Defendants cited multiple statutes in
Secretarial Order 3401 and the SOP Letter that they maintain support their
decision to implement the Moratorium: the Tax Act, NEPA, and possibly also
ANILCA.226 	As discussed above, the Moratorium “is permissible under the[se]
statute[s].”227 	Further, the Court may presume that Agency Defendants believe
that their new position is “better” since they identified legal deficiencies in the
Program’s implementation that they determined warranted a temporary pause.228
Agency Defendants also satisfied the requirement to provide “good reasons”
to justify their positional change. 	It is not a coincidence that Agency Defendants
identified legal errors in the Program promptly after a change in presidential
administrations. A political motivation for a policy change may not necessarily by
224 This is not a case where Agency Defendants failed entirely to discuss the substance of how
their new policy diverges from the prior policy. See Ctr. for Biological Diversity v. Haaland, 998
F.3d 1061 (9th Cir. 2021) (vacating agency’s decision that Pacific walrus no longer qualified as
threatened species where decision referred to contradictory prior finding only in a discussion of
the decision’s procedural history).
225 Fox, 556 U.S. at 515 (emphasis omitted).
226 AR 3362, 3364–65.
227 Fox, 556 U.S. at 515; see also discussion supra Section I.
228 Vill. of Kake, 795 F.3d at 967 (“[W]e assume the Department ‘believes’ the new policy is
better because it decided to adopt it.” (quoting Fox, 556 U.S. at 515)).
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itself be a “good reason” for a positional change.229 And yet, as the Supreme Court
explained, “[a]n initial agency interpretation is not instantly carved in stone. On the
contrary, the agency . . . must consider varying interpretations and the wisdom of
its policy on a continuing basis, for example, in response to changed factual
circumstances, or a change in administrations.”230 And “a court may not reject an
agency’s stated reasons . . . simply because the agency might also have had other
unstated reasons.”231 	Instead, a court should evaluate only the reasons the
agency provided when explaining its new policy.232
An agency’s reasons for a change can be sufficient even if they simply take
the 	form 	of 	a 	“brief” 	explanation 	that 	the 	agency’s 	“interpretation 	is 	‘more
consistent’ with statutory language” than an earlier interpretation.233 	This is
precisely what Agency Defendants have done here. Agency Defendants identified
violations of NEPA, and numerous federal courts over the past half-century have
229 See Coteau Props. Co. v. U.S. Dep’t of the Interior, 53 F.3d 1466, 1478 (8th Cir. 1995)
(rejecting withdrawal of agency decision following change in administration when agency made
“no pretense of applying . . . the deferential standard of review mandated by [its] own
regulations”); Amalgamated Transit Union, Int’l v. U.S. Dep’t of Lab., Case No. 2:20-cv-00953-
KJM-DB, 2022 WL 17978627, at *24 (E.D. Cal. Dec. 28, 2022) (invalidating agency decisions
“motivated by a desire to reach a specific outcome, and . . . not informed by expertise, evidence
or careful analysis”).
230 Brand X Internet Servs., 545 U.S. at 981 (emphasis added) (citations and internal quotation
marks omitted).
231 Dep’t of Com. v. New York, 139 S. Ct. 2551, 2573 (2019) (citation omitted).
232 Michigan v. EPA, 576 U.S. 743, 758 (2015) (observing the “foundational principle of
administrative law” that a court’s review is limited to “the grounds that the agency invoked when
it took the action.” (citation omitted)).
233 Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 175 (2007) (citations omitted).
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found NEPA violations to be significant enough to warrant the suspension of
important federal projects.234 	Agency Defendants also identified a purported
misinterpretation of the Tax Act—the primary substantive law authorizing the
Program—concerning the number of surface acres that the Interior Secretary must
authorize to be covered by oil and gas production and support facilities.235 Further,
Agency Defendants noted, albeit without providing additional explanation, that they
identified a possible error concerning the other substantive law governing the
Program, ANILCA.236 	For these reasons, Plaintiffs’ contention that the Interior
Secretary “does not explain how she reached [her] determination” and “makes no
attempt 	to 	reconcile 	the 	Moratorium 	with 	Interior’s 	prior 	position 	that 	the
environmental review complied ‘with all appliable [sic] laws’” is unfounded.237
Additionally, the Ninth Circuit has held that conforming an agency’s analysis
to federal appellate decisions can be a “good reason” to justify a change in
position.238 	In Center for Biological Diversity v. Bernhardt, the Ninth Circuit held
234 See, e.g., Citizens for Responsible Area Growth v. Adams, 477 F. Supp. 994, 1006 (D.N.H.
1979); Nat’l Audubon Soc’y v. Hodel, 606 F. Supp. 825, 846 (D. Alaska 1984); City of Tenakee
Springs v. Block, 778 F.2d 1402, 1407–08 (9th Cir. 1985).
235 AR 3365 (citing Tax Act § 20001(c)(3)).
236 See AR 3364 (“[T]he Department has identified several areas for which additional analysis
may either address a potential legal defect or, at a minimum, serve NEPA’s purpose to
meaningfully inform the decisionmaker as to the environmental consequences of federal action.
These include . . . compliance with section 810 of [ANILCA].”).
237 Docket 60 at 36.
238 See Alaska Oil & Gas Ass’n v. Pritzker, 840 F.3d 671, 682 (9th Cir. 2016) (approving National
Marine Fisheries Service’s explanation for adopting a new approach to climate analysis during
the Endangered Species Act review process based in part on conformance to federal appellate
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that a NEPA analysis of a planned offshore oil drilling and production facility was
deficient because it failed to include greenhouse gas emissions estimates resulting
from foreign oil consumption in its analysis of the no-action alternative.239 	Here,
the EIS prepared in conjunction with the Program similarly fails to consider
greenhouse gas emissions estimates resulting from foreign oil consumption.240
Although BLM’s EIS for the Program attempts to explain why it did not consider
the Program’s impact on foreign oil consumption and greenhouse gas emissions,
the 	Ninth 	Circuit 	rejected 	those 	same 	arguments 	in 	Center 	for 	Biological
Diversity.241
The Ninth Circuit issued its Center for Biological Diversity decision after
Agency Defendants completed the EIS, issued the ROD, and provided the public
with notice of the lease sale.242 	Although the lease sale took place shortly after
decisions interpreting the Act’s “best data available” standard).
239 982 F.3d at 736.
240 See AR 84 (“Note that BOEM did not model alternative future carbon policies and foreign
energy consumption . . . .”); AR 1019 (“[T]here are currently no reliable methodologies for
forecasting foreign energy cross-price elasticities and oil/gas price shock substitution responses
to arrive at a global [greenhouse gas] emissions impact from associated domestic changes.”);
AR 1690 (explaining, in response to a comment, BLM’s position that the D.C. Circuit Court of
Appeals “has held that agencies are not required to model how their actions will affect global
energy markets and how those market changes will, in turn, affect foreign greenhouse gas
emissions” (citation omitted)).
241 Ctr. for Biological Diversity, 982 F.3d at 737–740; see also Sovereign Iñupiat for a Living
Arctic v. Bureau of Land Mgmt., 555 F. Supp. 3d 739, 762–67 (D. Alaska 2021) (vacating BLM’s
approval of proposed oil and gas development project in part because BLM’s greenhouse gas
emissions analysis suffered from the same flaws the Ninth Circuit identified in Center for
Biological Diversity).
242 See generally AR 1–3135 (EIS); AR 3138–3225 (ROD); AR 3227–28 (notice of lease sale).
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the Center for Biological Diversity decision was released, Agency Defendants likely
did not have an opportunity to consider the Ninth Circuit’s holding when conducting
that sale. 	Because the Ninth Circuit’s holding governs the greenhouse gas
analysis necessary for an oil and gas program to proceed in accordance with
NEPA, it is reasonable for Agency Defendants to pause the Program to reconsider
its underlying NEPA analysis in light of the recent holding.243 	It is particularly
reasonable to pause the Program at this early stage where “no irreparable and
irretrievable 	commitment 	of 	resources 	has 	occurred”244 	given 	the 	lessees’
opportunity to receive refunds of their bid and rental payments and the lack of
mobilization to conduct exploration or development activities. 245
Given the above, the Court finds that Agency Defendants’ explanation in
Secretarial Order 3401 and the SOP Letter satisfies the requirements for a
reasoned explanation articulated in Fox. Their explanation is not, as the State puts
it, a set of conclusory, “generic statements” concerning the Program’s possible
legal deficiencies.246 	And where Agency Defendants’ explanation contradicts
243 Cf. Citizens for Clean Energy v. U.S. Dep’t of the Interior, 621 F. Supp. 3d 1165, 1175 (D.
Mont. 2022) (reinstating previously issued coal leasing moratorium until BLM performed a
sufficient NEPA analysis).
244 Save Our Sound OBX, Inc. v. N.C. Dep’t of Transp., 324 F. Supp. 3d 597, 624 (E.D.N.C.
2018) (citing Nat’l Audubon Soc’y v. U.S. Dep’t of Navy, 422 F.3d 174, 206 (4th Cir. 2005)), aff’d,
914 F.3d 213 (4th Cir. 2019).
245 See AR 3782–92 (agreements and notices regarding rescission of leases and refund of
payments).
246 Docket 59 at 28.
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earlier positions expressed in the ROD, EIS, and prior litigation, they provide
reasons that reflect “a rational connection” to their decision to implement the
temporary Moratorium.247
The cases that Plaintiffs and the State cite in which courts have deemed an
agency’s explanations to be inadequate are inapposite.248 Plaintiffs and the State
assert that Village of Kake involved a similar circumstance to the present case.249
But Village of Kake involved a policy change that rested on changed factual
findings.250 	Under the Supreme Court’s Fox jurisprudence, if an agency’s new
policy rests upon factual findings that contradict those contained in a prior decision,
a “more substantial justification” is required.251 In Village of Kake, the Ninth Circuit
affirmed the district court’s vacatur of a 2003 ROD and reinstatement of a 2001
ROD because the 2003 ROD “did not simply rebalance old facts to arrive at the
247 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52
(1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).
248 Docket 59 at 30 (first citing Los Padres ForestWatch v. U.S. Forest Serv., 25 F.4th 649, 657
(9th Cir. 2022); and then citing California v. Bernhardt [sic], 286 F. Supp. 3d 1054, 1065–68
(N.D. Cal. 2020 [sic])); Docket 59 at 33 (citing Vill. of Kake, 795 F.3d at 966); Docket 60 at 38
(first citing Organized Vill. of Kake v. U.S. Dep’t of Agric., 776 F. Supp. 2d 960, 974 (D. Alaska
2011); and then citing Vill. of Kake, 795 F.3d at 966). It appears that the State incorrectly named
one of these cases in its briefing. The case located at 286 F. Supp 3d 1054 is California v.
Bureau of Land Management, not California v. Bernhardt, although there is a 2020 decision
from the Northern District of California with that name. California v. Bernhardt, 472 F. Supp. 3d
573 (N.D. Cal. 2020).
249 Docket 59 at 33 (citing Vill. of Kake, 795 F.3d at 966, 969); Docket 60 at 38 (citing Vill. of
Kake, 795 F.3d at 966).
250 Vill. of Kake, 795 F.3d at 968.
251 Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 106 (2015).
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new policy” but instead “made factual findings directly contrary to the 2001 ROD
and expressly relied on those findings to justify the policy change.”252 	Village of
Kake is inapposite because Agency Defendants did not base the Moratorium on
new factual findings that contradict their prior factual findings. 	Rather, any
contradiction lies in Agency Defendants’ position regarding the legality of the
Program’s NEPA review.
In Los Padres ForestWatch, the U.S. Forest Service “fail[ed] to provide
evidence of the average or median” diameter of trees that would qualify as
“generally 	small 	diameter 	timber” 	pursuant 	to 	federal 	regulations.253 	The
memorandum 	approving 	the 	project 	“contain[ed] 	a 	bare 	assertion—with 	no
supporting analysis—that . . . 21-inch [diameter-at-breast-height] trees are ‘smaller
trees’ consistent with the Roadless Area Conservation Rule.”254 	Not only did the
Forest Service fail entirely to explain its conclusion regarding the trees at issue,
but its conclusion also contradicted other evidence in the record, such as an
Environmental Assessment prepared for a nearby project that concluded that
“larger diameter” trees have a diameter at breast height exceeding 10 inches.255
Here, Agency Defendants did not leave their policy change unexplained, and their
252 Vill. of Kake, 795 F.3d at 968.
253 25 F.4th at 657.
254 Id.
255 Id. at 658.
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rationale did not contradict explicit factual findings contained elsewhere in the
record.
In California, BLM promulgated a rule, referred to by the district court as “the
Suspension Rule,” that suspended certain provisions of BLM’s Waste Prevention
Rule, a rule which had sought to “reduce waste of natural gas from venting, flaring,
and leaks during oil and natural gas production activities.”256 The court found that
the Suspension Rule’s reasoning was “untethered to evidence contradicting the
reasons for implementing the Waste Prevention Rule” because BLM had initially
found that the Waste Prevention Rule imposed “economical, cost-effective, and
reasonable measures . . . to minimize gas waste,” but in the Suspension Rule
found that it had “concerns regarding the statutory authority, cost, complexity,
feasibility, and other implications” of the Waste Prevention Rule.257 	Because the
Suspension Rule contained factual findings that appeared to “contradict those
underlying its prior policy,” lacked other factual support, and were “not properly
tailored” to address the concerns BLM identified with respect to the prior rule, the
court enjoined enforcement of the rule due to BLM’s failure to meet the “more
detailed justification” standard.258
256 286 F. Supp. 3d at 1058 (citation omitted).
257 Id. at 1058, 1065.
258 Id. at 1065–67 (quoting Fox, 556 U.S. at 515).
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Again, California is not directly applicable to the case at hand because the
reasons Agency Defendants offered for their policy change are not contradictory
factual findings about the Program’s operation; rather, they are contradictory legal
conclusions as to the EIS’s compliance with NEPA. 	For example, the ROD
concluded that the Tax Act’s provision that the Interior Secretary “shall authorize
up to 2,000 surface acres” means that BLM “cannot” consider “[a]n alternative that
allowed less than 2,000 acres of surface facilities”; Agency Defendants announced
the Moratorium in part because they determined the ROD’s interpretation was
incorrect, which had a significant impact on the NEPA review since it eliminated
from consideration any alternative with lesser surface acreage.259
Even though California is not directly applicable to the instant case, it still
lends support to Agency Defendants’ primary justification for the Moratorium—to
ensure that the NEPA analysis accounts for subsequently identified legal errors so
the Program can proceed in accordance with the law.260 As the court in California
observed, a “concern for judicial review may serve to justify a suspension or
delay.”261 There, BLM’s stated concern for judicial review was insufficient to justify
the Suspension Rule because BLM tailored the Suspension Rule “to achieve its
259 AR 76, 3365. The Court expresses no opinion in this order as to this legal issue.
260 AR 3364–65.
261 286 F. Supp. 3d at 1068.
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goal of relieving operators and the agency of the burden of complying with a rule
that may shortly change.”262
Here, by contrast, BLM’s stated concern was that the Program may be
based on a “specific legal error” implicated in then-pending court cases.263 	The
reasons for the Moratorium expressed in Secretarial Order 3401 and the SOP
Letter therefore are tethered to a concern about legality and judicial review and not
to some unrelated concern, such as a political motivation or desire to address
climate change. 	Political and climate-inspired motivations may have also been
present, but Agency Defendants appropriately tailored the Moratorium to address
specifically identified legal concerns that, once addressed, should facilitate Agency
Defendants’ efforts to implement the Program in accordance with the law.
In 	sum, 	the 	Court 	finds 	that 	Agency 	Defendants’ 	explanation 	for 	the
Moratorium satisfies their obligations pursuant to Fox.
3. 	The State’s Related Arguments
The State raises two related arguments concerning Agency Defendants’
policy change, which the Court addresses in turn.
a. 	The Moratorium does not rescind the ROD.
The State contends that the Moratorium “functionally rejects, suspends, and
even rescinds the ROD . . . without any independent lawful authorization nor with
262 Id. (citation omitted).
263 AR 3362–63 (noting “legal deficiencies”); AR 3365 (describing potential implications to NEPA
analysis after the Ninth Circuit issued Center for Biological Diversity in December 2020).
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any process that would otherwise be required for such an action.” 264 	The State
characterizes 	the 	Moratorium 	as 	“simply 	abandon[ing] 	an 	otherwise 	valid
decision.”265 	But as noted throughout this order, the Moratorium is a temporary
pause 	in 	Agency 	Defendants’ 	implementation 	of 	the 	Program. 	Nothing 	in
Secretarial Order 3401 or the SOP Letter “abandons” the ROD. 	At some future
time, Agency Defendants may choose to “reject[], suspend[], [or] even rescind[]
the ROD” based on the results of their ongoing supplemental NEPA analysis, but
they have not done so at this time. 266 	Instead, the final agency action properly
challenged in this suit is Agency Defendants’ decision to pause the Program’s
implementation, not a rejection or rescission of the ROD.
b. 	The Moratorium’s purpose is valid.
The State next alleges that the Moratorium is 	founded on an invalid
purpose.267 But the State fundamentally misconstrues the Moratorium’s purpose.
The purpose of the Moratorium is not, as the State contends, to “determine
whether to reaffirm or void the Coastal Plain leases.”268 	That may be part of the
purpose of the supplemental NEPA review, but the issues of whether Agency
Defendants have the authority to cancel any leases and under what circumstances
264 Docket 59 at 20.
265 Docket 59 at 20.
266 Docket 59 at 20.
267 Docket 59 at 23.
268 Docket 59 at 24.
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are not before this Court.269 	The purpose of the Moratorium—the agency action
that is properly challenged and currently before the Court—is to provide time for
Agency Defendants to ensure that the Program is implemented in accordance with
applicable laws.270 It is well within DOI’s authority to issue leases pursuant to the
Program and to pause lease implementation to address legal errors that could lead
a federal court to reject the Program and remand it to Agency Defendants,
triggering another years-long NEPA process.271
The State acknowledges this authority in its reply but asserts that an agency
cannot reconsider a decision “when Congress has provided a mechanism capable
of rectifying mistaken actions.”272 The State asserts that Congress, through NEPA,
269 Regardless, as discussed above, the leases clearly provide authority for Agency Defendants
to cancel the leases if, for example, a “lessee fails to comply with any provisions of” the lease.
E.g., AR 3312.
270 See AR 3362 (“Based on th[e] identified deficiencies, the Department . . . will conduct a new,
comprehensive analysis of the potential environmental impacts of the Program and address the
identified legal deficiencies. While that analysis is pending, I direct a temporary halt on all
Department activities related to the Program . . . .”); AR 3365 (“[T]he Department has concluded
that it is necessary to suspend the above-referenced lease(s) . . . . The BLM will undertake this
additional NEPA analysis to determine whether the leases should be reaffirmed, voided or
subject to additional mitigation measures.”).
271 See Ivy Sports Medicine, LLC v. Burwell, 767 F.3d 81, 86 (D.C. Cir. 2014) (“[A]dministrative
agencies are assumed to possess at least some inherent authority to revisit their prior
decisions, at least if done in a timely fashion.” (citations omitted)); discussion supra Section
I.C.3 (citing Boesche v. Udall, 373 U.S. 472 (1963)). Likewise, “notions of administrative
autonomy require that [an] agency be given a chance to discover and correct its own errors.”
See McKart v. United States, 395 U.S. 185, 195 (1969) (discussing reasons underlying the
administrative exhaustion doctrine). This includes “giving the agency an opportunity to fix its
own mistakes before it is brought to court.” William Loveland Coll. v. Distance Educ.
Accreditation Comm’n, 347 F. Supp. 3d 1, 13 (D.D.C. 2018), aff’d sub nom. William Loveland
Coll. v. Distance Educ. Accrediting Comm’n, 788 F. App’x 5 (D.C. Cir. 2019).
272 Docket 66 at 8 (quoting Ivy Sports, 767 F.3d at 86).
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provided “a detailed process that federal agencies can and do use to modify or
replace an existing ROD—a process that involves input by the public and other
stakeholders.”273 	But this contention again mischaracterizes the Moratorium,
which does not modify or replace the Program’s formal NEPA review or associated
documentation; 	it 	instead 	pauses 	the 	Program’s 	implementation 	so 	Agency
Defendants can conduct additional NEPA analysis and correct the Program’s
alleged legal deficiencies. 	To the extent Agency Defendants develop a new EIS
or ROD in an effort to rectify the alleged deficiencies, those efforts would require
adherence to the applicable procedures established by Congress in NEPA and
any applicable implementing regulations.
In light of the above, the Court concludes that the Moratorium’s purpose,
and Agency Defendants’ authority to pursue that purpose, are each valid.
C. 	Agency Defendants Have Not Unlawfully Delayed or
Unreasonably Withheld Agency Action
Plaintiffs’ remaining argument is that Agency Defendants “are unlawfully and
unreasonably delaying the completion of . . . discrete, required actions” pursuant
to the Tax Act.274 	They focus primarily on the statute’s directive that the Interior
Secretary “shall issue any rights-of-way or easements across the Coastal Plain for
the exploration, development, production, or transportation necessary to carry out
273 Docket 66 at 8 (first citing 42 U.S.C. § 4332(C); and then citing 40 C.F.R. §§ 1501–06).
274 Docket 60 at 39–40.
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this section.”275 	Plaintiffs maintain that the Court “shall compel” these actions
pursuant to Section 706(1) of the APA.276
Agency Defendants counter that they are not unlawfully withholding action
because they satisfied the requirement to hold the Program’s first lease sale and
are “well within the statutory timeline for the second required sale.”277 With regard
to the issuance of easements and rights-of-way, Agency Defendants maintain that
a court can only invoke Section 706(1) of the APA when an agency has failed “to
perform a ministerial or non-discretionary act,” not an action over which the agency
is accorded discretion. 278
The APA provides that a court “shall compel agency action unlawfully
withheld or unreasonably delayed,” including a failure to act.279 Judicial review of
an agency’s failure to act is limited, however, in order “to protect agencies from
undue 	judicial 	interference 	with 	their 	lawful 	discretion, 	and 	to 	avoid 	judicial
entanglement in abstract policy disagreements which courts lack both expertise
and information to resolve.”280 It follows that a court may not compel agency action
275 Tax Act § 20001(c)(2).
276 Docket 60 at 39 (citing 5 U.S.C. § 706(1)).
277 Docket 63 at 28; see also Docket 64 at 23 (“Interior did not . . . miss deadlines in the Tax
Act.”).
278 Docket 63 at 26–27 (quoting Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004)
[hereinafter SUWA]).
279 5 U.S.C. § 706(1); see also 5 U.S.C. § 551(13) (defining “agency action” to “include[] the . . .
failure to act”).
280 SUWA, 542 U.S. at 66.
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whenever an agency is withholding or delaying any action.281 	Rather, a court’s
authority to compel agency action “is carefully circumscribed to situations where
an agency has ignored a specific legislative command.”282 To prevail on a Section
706(1) claim, a plaintiff must establish “that an agency failed to take a discrete
agency action that it is required to take.”283 	A court must leave “the manner of its
action . . . to the agency’s discretion” since a court “has no power to specify what
the action must be.”284
In the Ninth Circuit, an action is “unlawfully withheld” if “Congress has
specifically provided a deadline for performance” and the agency has not met that
deadline.285 	When there is no set deadline by which an agency must act, a court
evaluates whether the agency’s delay is unreasonable by applying the six factors
established by the D.C. Circuit in Telecommunications Research & Action Center
v. FCC286 and adopted by the Ninth Circuit in Independence Mining Co. v.
Babbitt:287
(1) the time agencies take to make decisions must be governed by a
rule of reason; (2) where Congress has provided a timetable or other
281 Or. Nat. Desert Ass’n v. Bushue, Case No. 3:19-cv-1550-SI, 2022 WL 17487065, at *2 (D.
Or. Dec. 7, 2022).
282 Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d 923, 932 (9th Cir. 2010).
283 SUWA, 542 U.S. at 64 (emphasis in original).
284 Id. at 65.
285 Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1177 n.11 (9th Cir. 2002).
286 750 F.2d 70 (D.C. Cir. 1984) [hereinafter TRAC].
287 105 F.3d 502, 507 (9th Cir. 1997).
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indication of the speed with which it expects the agency to proceed in
the enabling statute, that statutory scheme may supply content for this
rule of reason; (3) delays that might be reasonable in the sphere of
economic 	regulation 	are 	less 	tolerable 	when 	human 	health 	and
welfare are at stake; (4) the court should consider the effect of
expediting 	delayed 	action 	on 	agency 	activities 	of 	a 	higher 	or
competing priority; (5) the court should also take into account the
nature and extent of the interests prejudiced by delay; and (6) the
court need not find any impropriety lurking behind agency lassitude in
order to hold that agency action is unreasonably delayed. 288
The rule of reason is the most important factor in this analysis because, in
determining an “appropriate timeline for agency action, the Ninth Circuit has
instructed district courts to follow a standard of reasonableness.” 289 	Although
“there is no per se rule as to how long is too long” for agency action, 290 the Ninth
Circuit has observed that a delay of more than six years may be “nothing less than
egregious.”291 	Similarly, the Ninth Circuit held that an eight-year delay with no
concrete timeline to reach a final ruling was a “roadmap for further delay” that
“stretched the ‘rule of reason’ beyond its limits.” 292
Plaintiffs rely on one Supreme Court case supporting the proposition that
when an agency fails to take a discrete step it is required to take, a court must
288 TRAC, 750 F.2d at 80 (internal quotation marks and citations omitted).
289 Audubon Soc’y of Portland v. Jewell, 104 F. Supp. 3d 1099, 1102 (D. Or. 2015) (citations
omitted); see also Or. Nat. Desert Ass’n, 2022 WL 17487065, at *17 (“Although not dispositive,
the first factor in the TRAC analysis is the most important.” (citing In re A Community Voice, 878
F.3d 779, 786 (9th Cir. 2017))).
290 In re Int’l Chem. Workers Union, 958 F.2d 1144, 1149 (D.C. Cir. 1992).
291 In re Nat. Res. Def. Council, Inc., 956 F.3d 1134, 1139 (9th Cir. 2020) (citations omitted).
292 In re Pesticide Action Network N. Am., 798 F.3d 809, 814 (9th Cir. 2015).
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invoke 	the 	APA 	to 	compel 	that 	action.293 	However, 	the 	operative 	statutes
governing the Program—primarily the Tax Act—do not prescribe any discrete
steps that Agency Defendants have yet failed to take. 	The Tax Act requires DOI
to hold “the initial lease sale under the oil and gas program . . . not later than 4
years after the date of enactment of this Act.”294 	Agency Defendants conducted
the Program’s first lease sale on January 6, 2021.295 	Congress enacted the Tax
Act on December 22, 2017, so Agency Defendants handily met this deadline.296
Agency Defendants have not cancelled, rescinded, nullified, or otherwise undone
the first lease sale.297 And the second lease sale deadline of December 22, 2024,
has not yet passed.298
As for the Tax Act’s mandate to the Secretary to “issue any rights-of-way or
easements . . . necessary to carry out this section,” this provision does not specify
a timeframe by which Agency Defendants must act, and the Tax Act provides them
293 Docket 60 at 39–40 (citing SUWA, 542 U.S. at 64). In SUWA, the Supreme Court held that
statements in a land use plan reflecting BLM’s intention to conduct supervision and monitoring
activities were “not a legally binding commitment enforceable under § 706(1),” and, as such, the
Supreme Court did not decide whether the statements were “sufficiently discrete to be
amenable to compulsion under the APA.” SUWA, 542 U.S. at 72.
294 Tax Act § 20001(c)(1)(B)(ii)(I).
295 AR 3227–28 (Notice of Lease Sale).
296 See generally Tax Act.
297 To the extent Plaintiffs suggest that the Moratorium is a de facto rescission of the lease sale,
they have not pointed to any authority indicating that this is the case. Also, for the reasons the
Court discussed above in response to the State’s argument that the Moratorium functionally
rescinded the ROD, there has not been a “functional” rescission of the lease sale. See
discussion supra Section II.B.3.a.
298 See Tax Act § 20001(c)(1)(B)(ii)(II).
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discretion through use of the phrase “necessary to carry out this section.”299 Thus,
apart from the lease sales themselves, there are no other “discrete agency
action[s]” for which Agency Defendants have an explicit deadline. 300
Plaintiffs’ briefing does not address the TRAC factors and instead only
superficially alleges an unreasonable delay.301 	Regardless, none of the factors
weigh heavily in favor of Plaintiffs. 	First, the most important factor, the “rule of
reason,” weighs in favor of Agency Defendants given the temporary nature of the
Moratorium and their desire to address legal issues that could stymie the Program
while 	balancing 	ANILCA’s 	conservation 	goals. 	Second, 	Congress 	has 	not
provided 	any 	timetable 	for 	implementation 	of 	the 	Program 	beyond 	the
requirements to conduct two lease sales within set periods of time, neither deadline
of which Agency Defendants have violated. 	Third, the delays have resulted only
in possible economic harm, as human health and welfare are not directly impacted
by the Moratorium. 	Fourth, Agency Defendants delayed the Program for the
299 Id. § 20001(c)(2). Because Agency Defendants identified legal deficiencies in the Program’s
implementation, no rights-of-way or easements are necessary at this time to “carry out” Section
20001 of the Tax Act. Cf. W. Energy All. v. Biden, Case No. 21-CV-13-SWS, 2022 WL
18587039, at *9 (D. Wyo. Sept. 2, 2022) (finding that, because “recent caselaw created a cloud
over the sufficiency of many of the” Environmental Assessments underlying a leasing program,
none of the lands subject to the program were properly “available for leasing” pursuant to the
MLA and its implementing regulations).
300 SUWA, 542 U.S. at 64.
301 See generally Docket 60 at 39–40. The State identifies two cases in which courts have held
that agencies violated the APA by delaying agency action, but the State’s filing likewise does not
separately address APA § 706(1) or discuss the TRAC factors. Docket 59 at 22–23. Plaintiffs’
and the State’s replies do not address these factors either. See generally Docket 66; Docket
67.
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purpose of ensuring that their NEPA review comports with the law. Indeed, Agency
Defendants are attempting to balance the constraints imposed on them through
multiple federal statutes: the Tax Act, ANILCA, and NEPA. There is no indication
from Congress that any of these statutes should be prioritized over any other, and
it 	cannot 	be 	said 	that 	a 	temporary 	delay 	in 	the 	Program’s 	implementation
represents an unreasonable prioritization of NEPA over the Tax Act or ANILCA
when Agency Defendants have already begun to implement the Program and have
only temporarily paused it to ensure compliance with NEPA. 	These efforts
ultimately should further both the Tax Act and ANILCA’s goals as well as NEPA’s
goals. 	Fifth, Plaintiffs have articulated some degree of prejudice from the delay,
but there is no indication that, when the Moratorium ends, they will not be able to
fulfill their objectives at that point. The sixth factor is largely irrelevant in this case,
as there is no evidence that Agency Defendants have acted with impropriety.302 At
worst, their actions are rooted in political motivations, which are not by themselves
reason to find a delay unreasonable. 	Accordingly, the Court finds that Agency
Defendants’ delay in implementing the Program is reasonable and that to date
Agency Defendants have not unlawfully withheld any action.303
302 See TRAC, 750 F.2d at 80 (listing six factors relevant to the question of whether an agency’s
delay is unreasonable).
303 Because the Court finds that the Moratorium complies with the law, it does not reach the
parties’ arguments concerning the proper remedy in this case. Docket 60 at 40.
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CONCLUSION
In light of the foregoing, the State’s and Plaintiffs’ motions for summary
judgment at Docket 59 and Docket 60, respectively, are DENIED. 	Defendants’
responses in opposition—which the Court interprets as cross-motions for summary
judgment—at Docket 63, Docket 64, and Docket 65 are GRANTED. 	All claims
against Federal Defendants are DISMISSED with prejudice. The Clerk of Court is
directed to enter a final judgment accordingly.
DATED this 7th day of August, 2023 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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