3:23-cv-00061 | Omnilex

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
SOVEREIGN IÑUPIAT FOR A LIVING
ARCTIC, et al.,
Plaintiffs,
v.
BUREAU OF LAND MANAGEMENT,
et al.,
Defendants.
and
CONOCOPHILLIPS ALASKA, INC.,
et al.,
Intervenor-Defendants.
Case No. 3:23-cv-00058-SLG
CENTER FOR BIOLOGICAL DIVERSITY, et
al.,
Plaintiffs,
v.
BUREAU OF LAND MANAGEMENT,
et al.,
Defendants.
and
CONOCOPHILLIPS ALASKA, INC.,
et al.,
Intervenor-Defendants.
Case No. 3:23-cv-00061-SLG
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ORDER RE MOTIONS FOR TEMPORARY RESTRAINING ORDER AND
PRELIMINARY INJUNCTION
Before the Court are two motions filed in related cases challenging the
Bureau of Land Management’s (“BLM”) review and approval of ConocoPhillips
Alaska, Inc.’s (“ConocoPhillips”) Willow Master Development Plan (“Willow
Project” or “Project”) in the National Petroleum Reserve in Alaska (“NPR-A” or
“Reserve”). At issue are Center for Biological Diversity Plaintiffs’ (“CBD Plaintiffs”)1
Motion for Preliminary Injunction (Docket 24) and Sovereign Iñupiat for a Living
Arctic Plaintiffs’ (“SILA Plaintiffs”)2 Motion for Temporary Restraining Order and
Preliminary Injunction (Docket 23). Both motions seek to enjoin ConocoPhillips
from undertaking Willow Project construction activities this winter, pending the
Court’s final judgment on the merits of Plaintiffs’ claims against Federal
Defendants.3 Oral argument was not requested and was not necessary to the
1 CBD Plaintiffs are Center for Biological Diversity, Defenders of Wildlife, Friends of the Earth,
Greenpeace, Inc., and Natural Resources Defense Council, Inc. Case No. 3:23-cv-00061-SLG.
2 SILA Plaintiffs are Sovereign Iñupiat for a Living Arctic, Alaska Wilderness League,
Environment America, Northern Alaska Environmental Center, Sierra Club, and The Wilderness
Society. Case No. 3:23-cv-00058-SLG.
3 In Case No. 3:23-cv-00058-SLG, Federal Defendants are the United States Bureau of Land
Management (“BLM”); United States Fish and Wildlife Service (“FWS”); and United States
Department of the Interior (“Interior Department”). In Case No. 3:23-cv-00061-SLG, Federal
Defendants are the same with the addition of National Marine Fisheries Service; United States
Department of Commerce; Deb Haaland, in her official capacity as Secretary of the Interior;
Tommy P. Beaudreau, in his official capacity as Deputy Secretary of the Interior; Gina M.
Raimondo, in her official capacity as Secretary of Commerce; Steven Cohn, in his official
capacity as Alaska State Director of Bureau of Land Management; Sara Boario, in her official
capacity as Regional Director of United States Fish and Wildlife Service; and Jonathan Kurland,
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Court’s determination. For the reasons set forth below, Plaintiffs’ motions will be
denied.
INTRODUCTION
I. Background
The National Petroleum Reserve in Alaska (“NPR-A” or “Reserve”), on
Alaska’s North Slope, consists of 23.6 million acres and is the nation’s largest
single unit of public land.4 Established as the Naval Petroleum Reserve Number
4 in 1923, the NPR-A was renamed and its management authority was transferred
to the Secretary of the Interior in 1976 by the Naval Petroleum Reserves
Production Act (“NPRPA”), 42 U.S.C. § 6501 et seq.5 In 1980, the NPRPA was
amended by an appropriations rider that directed the Secretary of the Interior to
conduct “an expeditious program of competitive leasing of oil and gas in the” NPR-
in his official capacity as Regional Administrator of National Marine Fisheries Service.
ConocoPhillips Alaska, Inc., Arctic Slope Regional Corporation, North Slope Borough, Kuukpik
Corporation, and the State of Alaska were admitted as intervenor-defendants in both cases. An
amicus brief was filed by United States Senator Lisa Murkowski, Senator Dan Sullivan,
Representative Mary Sattler Peltola, and the Alaska State Legislature. Another amicus brief
was filed by Alaska Business, Union, and Trade Groups. See Dockets 9, 27, 37, 39, 45, 59, 60
(Case No. 3:23-cv-00058-SLG).
4 N. Alaska Env’t Ctr. v. Kempthorne, 457 F.3d 969, 973 (9th Cir. 2006).
5 U.S. Dep’t of the Interior, Bureau of Land Mgmt., DOI-BLM-AK-0000-2018-0004-EIS, Willow
Master Development Plan Supplemental Environmental Impact Statement – Final 2 (2023),
https://eplanning.blm.gov/public_projects/109410/200258032/20073121/250079303/Willow%20
FSEIS_Vol%201_Ch%201-Ch%205.pdf (hereinafter “Final SEIS”). Final SEIS page numbers
cited to in this order refer to the given page number in the Final SEIS, not the page number of
the entire document.
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A.6 Over the years, Intervenor-Defendant ConocoPhillips has acquired and
developed significant lease holdings in the northeast portion of the NPR-A.7
On May 10, 2018, ConocoPhillips requested that BLM prepare an
Environmental Impact Statement (“EIS”) for the Willow Project, as required by the
National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321 et seq.8
The following year, BLM made available for public comment a Draft EIS for the
Project.9 Then, on March 26, 2020, BLM released a Supplemental Draft EIS that
evaluated additional Project components.10 BLM published its notice regarding the
availability of the Final EIS (“FEIS”) on August 14, 2020.11 On October 26, 2020,
then-Secretary of the Interior David Bernhardt signed the Record of Decision
(“ROD”) adopting ConocoPhillips’ proposed five drill site project, although BLM
approved three drill sites and deferred decisions on the other two drill sites.12
6 Pub. L. No. 96-514, 94 Stat. 2957 (1980) (codified at 42 U.S.C. § 6506a).
7 Docket 5 at 2–7 (Case No. 3:23-cv-00058-SLG) (ConocoPhillips Mot. Intervene).
8 84 Fed. Reg. 45801, 45801 (Aug. 30, 2019).
9 84 Fed. Reg. at 45801.
10 85 Fed. Reg. 17094 (Mar. 26, 2020) (“This targeted Supplement to the Draft EIS only
addresses additional analysis for three Project components added by the Project proponent:
Module [D]elivery Option 3, a constructed freshwater reservoir, and up to three boat ramps for
subsistence access.”).
11 85 Fed. Reg. 49677 (Aug. 14, 2020).
12 Docket 24-6 at 1–3 (Case No. 3:23-cv-00061-SLG) (Willow Master Development Plan Record
of Decision 2020); Docket 23-13 at 11 (Case No. 3:23-cv-00058-SLG) (Willow Master
Development Plan Record of Decision 2023).
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time-barred, they would likely succeed on the merits of the NEPA claims.17 The
Court also held that the blasting planned as part of the winter construction activities
would cause irreparable injury to at least one of the plaintiffs’ members.18 A
motions panel of the Ninth Circuit granted the plaintiffs’ emergency motions for an
injunction pending appeal and extended this Court’s temporary injunction for the
duration of the appeal. 19 The Ninth Circuit held that the plaintiffs had “raised a
serious question” with respect to whether their NEPA claims were time-barred, and
held that the other Winter20 factors tipped in the plaintiffs’ favor.21
In August 2021, the Court ruled on the merits and vacated BLM’s approval
of the Willow Project under NEPA and vacated the Fish and Wildlife Service’s
Biological Opinion (“BiOp”), granting in part the plaintiffs’ motion for summary
judgment.22 With respect to NEPA, the Court found that: (1) “BLM’s exclusion of
foreign greenhouse gas emissions in its alternatives analysis in the EIS was
arbitrary and capricious”; (2) “BLM acted contrary to law insofar as it developed its
17 Id. at *2.
18 Id. at *3.
19 Sovereign Iñupiat for a Living Arctic v. Bureau of Land Mgmt., No. 21-35085, No. 21-35095,
2021 WL 4228689 (9th Cir. Feb. 13, 2021).
20 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008).
21 Sovereign Iñupiat for a Living Arctic, 2021 WL 4228689, at *1–2.
22 Sovereign Iñupiat for a Living Arctic v. Bureau of Land Mgmt., 555 F. Supp. 3d 739, 805 (D.
Alaska 2021).
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alternatives analysis based on the view that ConocoPhillips had the right to extract
all possible oil and gas from its leases”; and (3) “BLM acted contrary to law in its
alternative[s] analysis for the Teshekpuk Lake Special Area insofar as it failed to
consider the statutory directive that it give ‘maximum protection’ to surface values
in that area.”23 With respect to the BiOp, the “incidental take statement [wa]s not
in accordance with the law because it lack[ed] the requisite specificity of mitigation
measures for the polar bear.”24
Following the Court’s decision, BLM began preparing a Supplemental
Environmental Impact Statement (“SEIS”) for the Willow Project “to address
deficiencies identified by [the Court].”25 On July 25, 2022, BLM made available for
public comment a Draft SEIS.26 BLM published the notice of availability of the
Final SEIS in the Federal Register on February 6, 2023.27 On March 12, 2023,
Deputy Secretary of the Interior Tommy Beaudreau signed the Record of Decision
approving the Willow Project.28
23 Id. at 805.
24 Id.
25 87 Fed. Reg. 44148, 44148 (July 25, 2022).
26 87 Fed. Reg. at 44148.
27 88 Fed. Reg. 7756 (Feb. 6, 2023).
28 Docket 23-13 at 37 (Case No. 3:23-cv-00058-SLG).
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II. The Willow Project and Winter 2023 Construction Activities
As approved by the ROD, the Willow Project would consist of three drill sites
and related support infrastructure, including a processing facility, airstrip,
operations center, gravel mine, gravel roads connecting the Project infrastructure,
and pipelines.29 The ROD disapproved of two additional drill sites that had been
proposed by ConocoPhillips, explaining that this decision “significantly reduces the
footprint of project infrastructure and the level of construction and operational
activities, both within and outside of the sensitive [Teshekpuk Lake Special Area],
and thereby substantially reduces impacts to a broad range of surface
resources.”30 Four days after BLM issued the ROD, ConocoPhillips relinquished
68,085.50 acres of leased lands in the Reserve because BLM “did not approve
drilling pads that could have developed [these] leases.”31
On March 13, 2023, the Department of the Interior issued a Right-of-Way
Grant to ConocoPhillips approving its request to begin developing the Willow
Project.32 ConocoPhillips began ice road construction that same day and, unless
29 Docket 23-13 at 13 (Case No. 3:23-cv-00058-SLG).
30 Docket 23-13 at 21 (Case No. 3:23-cv-00058-SLG).
31 Docket 48-10 at 23 (Case No. 3:23-cv-00058-SLG).
32 Docket 22-3 at 1–5 (Case No. 3:23-cv-00058-SLG).
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III. Plaintiffs’ Claims
SILA Plaintiffs filed their case on March 14, 2023, and their motion for
preliminary injunctive relief on March 16, 2023.50 In their motion, SILA Plaintiffs
assert that they are likely to succeed on their claim that Federal Defendants
“violated NEPA and the NPRPA by failing to consider a reasonable range of
alternatives and arbitrarily limiting its authority.”51 SILA Plaintiffs also bring a claim
pursuant to Section 810 of the Alaska National Interest Lands Conservation Act
(“ANILCA”), 16 U.S.C. § 3120, arguing that Federal Defendants failed to consider
alternatives that would reduce impacts to subsistence uses.52
CBD Plaintiffs initiated their case on March 15, 2023, and filed their motion
for preliminary injunctive relief on March 16, 2023.53 As relevant here, CBD
Plaintiffs assert they are likely to succeed on two claims: First, CBD Plaintiffs
contend that Federal Defendants failed to meaningfully consider “reasonable
alternatives that would have minimized the Project’s adverse effects on climate
50 See Docket 1 (Case No. 3:23-cv-00058-SLG) (Compl.); Docket 23 (Case No. 3:23-cv-00058-
SLG) (Mot. TRO & Prelim. Inj.).
51 Docket 23-1 at 8 (Case No. 3:23-cv-00058-SLG); see also Docket 1 at 55–58, ¶¶ 164–174
(Case No. 3:23-cv-00058-SLG).
52 Docket 23-1 at 16 (Case No. 3:23-cv-00058-SLG); see also Docket 1 at 58–59, ¶¶ 174–180
(Case No. 3:23-cv-00058-SLG).
53 See Docket 1 (Case No. 3:23-cv-00061-SLG) (Compl.); Docket 24 (Case No. 3:23-cv-00061-
SLG) (Mot. Prelim. Inj.).
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LEGAL STANDARD
In Winter v. Natural Resources Defense Council, Inc., the United States
Supreme Court held that plaintiffs seeking preliminary injunctive relief must
establish that (1) they are likely to succeed on the merits; (2) they are likely to
suffer irreparable harm in the absence of preliminary relief; (3) the balance of
equities tips in their favor; and (4) a preliminary injunction is in the public interest.58
When, as here, the government is a party to the action, the balance of equities
factor and the public interest factor merge.59 The Supreme Court in Winter
characterized “injunctive relief as an extraordinary remedy that may only be
awarded upon a clear showing that the plaintiff is entitled to such relief.”60
Following Winter, the Ninth Circuit addressed the first element—the
likelihood of success on the merits—and held that its “serious questions” approach
to preliminary injunctions was still valid “when applied as a part of the four-element
Winter test.”61 Under that approach, if a plaintiff shows “that there are ‘serious
questions going to the merits’—a lesser showing than likelihood of success on the
58 555 U.S. at 20. The standard for obtaining a temporary restraining order is “substantially
identical” to that for a preliminary injunction, so the Court considers them together. Stuhlbarg
Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001).
59 Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014).
60 Winter, 555 U.S. at 22 (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)).
61 All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131–32 (9th Cir. 2011).
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merits—then a preliminary injunction may still issue if the ‘balance of hardships
tips sharply in the plaintiff’s favor.’”62 “Serious questions are ‘substantial, difficult
and doubtful, as to make them a fair ground for litigation and thus for more
deliberative investigation.’”63 They “need not promise a certainty of success, nor
even present a probability of success, but must involve a ‘fair chance on the
merits.’”64 All four Winter elements must still be satisfied under this approach,65
but the last two elements—the balance of hardships and consideration of the public
interest—merge when the government is a party to the action.66
Injunctive relief is an equitable remedy, and “[t]he essence of equity
jurisdiction is the power of the court to fashion a remedy depending upon the
necessities of the particular case.”67
62 Friends of the Wild Swan v. Weber, 767 F.3d 936, 942 (9th Cir. 2014) (emphasis in original)
(quoting Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013)).
63 Gilder v. PGA Tour, Inc., 936 F.2d 417, 422 (9th Cir. 1991) (quoting Republic of the
Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988)); see also Fyock v. City of
Sunnyvale, 25 F. Supp. 3d 1267, 1273 (N.D. Cal. 2014) (“‘Serious questions’ refers to questions
‘which cannot be resolved one way or the other at the hearing on the injunction and as to which
the court perceives a need to preserve the status quo . . . .’” (quoting Gilder, 936 F.2d at 422)).
64 Gilder, 936 F.2d at 422 (quoting Marcos, 862 F.2d at 1362).
65 All. for the Wild Rockies, 632 F.3d at 1135 (“Of course, plaintiffs must also satisfy the other
Winter factors.”); see also, e.g., Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Harris,
729 F.3d 937, 944 (9th Cir. 2013) (describing standard for preliminary injunction).
66 Nken v. Holder, 556 U.S. 418, 435 (2009).
67 Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1022 (9th Cir. 2009) (quoting United States v.
Odessa Union Warehouse Co-op, 833 F.2d 172, 175 (9th Cir. 1987)).
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DISCUSSION
Upon consideration of the parties’ briefing and the record in this case, the
Court finds as follows:
I. Likelihood of Irreparable Harm
The Court first considers whether Plaintiffs have demonstrated that they are
likely to suffer irreparable harm in the absence of preliminary injunctive relief.68 A
plaintiff “must demonstrate that in the absence of a preliminary injunction, ‘the
[plaintiff] is likely to suffer irreparable harm before a decision on the merits can be
rendered.’”69 “A likelihood of irreparable harm means ‘a likelihood of substantial
and immediate irreparable injury.’”70 The Supreme Court has emphasized that
“simply showing some ‘possibility of irreparable injury’” is insufficient.71
68 Plaintiffs urge the Court to follow the Ninth Circuit motions panel’s order in the previous
challenge to the Willow Project, which held that the plaintiffs would “suffer irreparable harm in
the absence of an injunction.” Sovereign Iñupiat for a Living Arctic, 2021 WL 4228689, at *2.
Plaintiffs maintain that ConocoPhillips proposes construction activities this winter that are
substantially similar to those considered by this Court and the Ninth Circuit in 2021. However,
the Ninth Circuit’s order is unpublished and not precedent. Ninth Cir. R. 36-3. Moreover, the
Court has received new arguments and declarations from all parties with respect to potential
irreparable harm from the Winter 2023 Construction Activities that merit further consideration.
69 Winter, 555 U.S. at 22 (quoting 11A Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 2948.1 (2d ed. 1995)).
70 Medcursor Inc. v. Shenzen KLM Internet Trading Co., 543 F. Supp. 3d 866, 877 (C.D. Cal.
2021) (quoting Apple Inc. v. Samsung Elecs. Co., Ltd., 678 F.3d 1314, 1325 (Fed. Cir. 2012)).
See also City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) (“The equitable remedy [of
injunction] is unavailable absent a showing of irreparable injury, . . . a ‘likelihood of substantial
and immediate irreparable injury.’” (quoting O’Shea v. Littleton, 414 U.S. 488, 501 (1974))).
71 Nken v. Holder, 556 U.S. 418, 434–35 (2009) (quoting Abbassi v. INS, 143 F.3d 513, 514 (9th
Cir. 1998)). As the Supreme Court has explained, “[i]ssuing a preliminary injunction based only
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“Speculative injury does not constitute irreparable injury . . . . [A] plaintiff must
demonstrate immediate threatened injury as a prerequisite to preliminary injunctive
relief.”72 Moreover, the injury must be irreparable.73 And yet, “[t]he Supreme Court
has instructed us that ‘[e]nvironmental injury, by its nature, can seldom be
adequately remedied by money damages and is often permanent or at least of
long duration, i.e., irreparable.’ Of course, this does not mean that ‘any potential
environmental injury’ warrants an injunction.”74 Because preliminary injunctive
relief is an equitable remedy, there is no presumption of irreparable harm, even in
cases involving environmental impact.75
Furthermore, “[t]here must be a ‘sufficient causal connection’ between the
alleged irreparable harm and the activity to be enjoined,” such as a “showing that
on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as
an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is
entitled to such relief.” Winter, 555 U.S. at 22 (citing Mazurek, 520 U.S. at 972).
72 Caribbean Marine Servs. Co., Inc. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988) (emphasis
omitted) (first citing Goldie’s Bookstore, Inc. v. Superior Ct. of State of Cal., 739 F.2d 466, 472
(9th Cir. 1984); and then citing L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d
1197, 1201 (9th Cir. 1980)).
73 See L.A. Mem’l Coliseum Comm’n, 634 F.2d at 1202 (holding that injury of lost revenues was
not irreparable).
74 All. for the Wild Rockies, 632 F.3d at 1135 (quoting Lands Council v. MacNair, 537 F.3d 981,
1004 (9th Cir. 2008)).
75 Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 544-55 (1987) (holding that a
presumption of irreparable damage “when an agency fails to evaluate thoroughly the
environmental impact of a proposed action . . . is contrary to traditional equitable principles”).
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‘the requested injunction would forestall’ the irreparable harm.”76 The movant, “by
a clear showing, carries the burden of persuasion.”77
As a preliminary matter, the current motions seek to enjoin the Winter 2023
Construction Activities. For the remainder of this winter season, ConocoPhillips
intends to open the gravel mine on the Tiŋmiaqsiuġvik River, construct up to 3.1
miles of a gravel road, and build a subsistence boat ramp on the Tiŋmiaqsiuġvik.78
The total surface disturbance from the Winter 2023 Construction Activities “will
range from 10.4 acres to 38.5 acres,” depending on how long the winter season
lasts.79 Clearly, the planned Winter 2023 Construction Activities are substantially
narrower in scope than the Willow Project as a whole.80 To obtain preliminary
76 Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 886 F.3d 803, 819 (9th Cir. 2018) (quoting
Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 981–82 (9th Cir. 2011)).
77 Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (emphasis in original) (quoting
Mazurek, 520 U.S. at 972).
78 Docket 48-11 at 4, ¶ 5, 7–8, ¶¶ 11–12 (Case No. 3:23-cv-00058-SLG).
79 Docket 48-11 at 8–9, ¶ 13 (Case No. 3:23-cv-00058-SLG).
80 See Nw. Env’t Def. Ctr. v. U.S. Army Corps of Eng’rs, 817 F. Supp. 2d 1290, 1314–15 (D. Or.
2011) (explaining that courts must “evaluate the likelihood of irreparable harm in the context of
specific and imminent proposals,” so plaintiffs had to show clear evidence of irreparable harm
from an extraction plan that was “much narrower in scope than generalized mining that may be
authorized . . . in the future”).
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“important subsistence fishing area[].”87 He expresses concerns that the “mine will
impact us and the health of the fish downstream.”88 He fears that “the increase of
pollutants in [the] streams” have caused the fish to grow “an unknown mold,” and
that the proposed gravel mining will cause similar impacts to subsistence uses.89
However, BLM’s analysis of the impacts of the Winter 2023 Construction Activities
on fish suggest that those impacts will be minimal. For example, BLM explains
that the closest overwintering habitat for fish is approximately three miles from the
mining sites, so “fish would not be affected by blasting or gravel excavation.”90
Moreover, the mine would be located 553 feet away from the river and “surface
erosion between the mine pits and the stream” is “unlikely” to occur, so the gravel
mine is not expected to cause permanent fish habitat loss or alteration.91 With
respect to the mold infecting fish, BLM referenced a 2021 laboratory experiment
investigating mold contamination and hypothesizing that “host susceptibility to
infection may be the prominent factor contributing to an increase in [mold]
infections . . . with environmental conditions [such as elevated temperature and
87 Docket 23-10 at 3, ¶ 8 (Case No. 3:23-cv-00058-SLG).
88 Docket 23-10 at 5, ¶ 10 (Case No. 3:23-cv-00058-SLG).
89 Docket 23-10 at 5, ¶¶ 11–12 (Case No. 3:23-cv-00058-SLG).
90 Final SEIS at 183.
91 Final SEIS at 177.
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reduced salinity] playing a more secondary role.”92 The Court acknowledges Mr.
Kunaknana’s concern for the potential of irreparable harm to the fish he relies on
for subsistence from the Winter 2023 Construction Activities. But his concern is
not sufficient to establish that irreparable harm to the downriver fish resource is
likely if Winter 2023 Construction Activities take place.93
The parties have submitted conflicting declarations from Nuiqsut residents
with respect to the potential impact of Winter 2023 Construction Activities on
subsistence hunters of caribou. Mr. Kunaknana states that he “hunt[s] for caribou
in the winter and [is] concerned about whether [he] will be able to continue doing
92 Final SEIS at 167–68. A court must defer to the agency’s discretion “to rely on the
reasonable opinions of its own qualified experts even if, as an original matter, a court might find
contrary views more persuasive.” Lands Council v. McNair, 537 F.3d 981, 1000 (9th Cir. 2008),
overruled in part on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)
(quoting Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989)). See also Friends of the
Wild Swan, 767 F.3d at 946 (holding that plaintiffs did not establish a likelihood of irreparable
harm to fisheries in the absence of an injunction where “[b]oth EAs indicate it is highly unlikely
that the ‘worst-case scenario’ event (intense storm following prescribed burn) for either project
would ever occur because of the seasonal timing of the burns, and thus it appears doubly
unlikely that all potential sediment discharge from both projects would occur simultaneously”);
Earth Island Institute v. Carlton, No. CIV. S-09-2020 FCD/EFB, 2009 WL 9084754, at *27 (E.D.
Cal. Aug. 20, 2009) (“Defendants’ experts’ testimony seriously undermines the soundness of
plaintiff’s claims of likely irreparable harm such that the court cannot find that plaintiff has made
the requisite showing under Winter.”).
93 See Caribbean Marine Servs. Co., 844 F.2d at 675–76 (explaining that “[s]ubjective
apprehensions and unsupported predictions” are “not sufficient to satisfy a plaintiff’s burden of
demonstrating an immediate threat of irreparable harm”); Ness v. L. Enf’t Support Agency, Case
No. C10-5111 KLS, 2012 WL 13176243, at *4 (W.D. Wash. Aug. 9, 2012) (“While worrying that
something may happen can be difficult, it does not rise to the level of irreparable harm.”);
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416 (2013) (“In other words, respondents cannot
manufacture standing merely by inflicting harm on themselves based on their fears of
hypothetical future harm that is not certainly impending.”).
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Winter 2023 Construction Activities will cause surface disruption on only a very
small fraction of the NPR-A—0.00015 percent.97 Moreover, BLM suggests that
habitat loss and alteration from gravel mining specifically will have a minimal effect
on caribou “[b]ecause the habitats lost are not unique and occur throughout the
analysis area . . . [so] caribou would likely move to similar habitats nearby.”98 With
respect to the disturbance or displacement of caribou, the Winter 2023
Construction Activities will only produce noise for approximately 21 days.99 BLM
acknowledges that the noise associated with winter construction at the mine “could
cause caribou to avoid the mine site or to act skittishly.” However, this will occur
during winter months when “overall caribou hunting activity is low.”100 Additionally,
while the blasting will make the most noise, it is of “very short onset and
duration.”101 In sum, the record does not support a showing of irreparable harm to
caribou from the Winter 2023 Construction Activities.
Plaintiffs have filed several declarations that they contend show that their
members will suffer injury to their use and enjoyment of the land where the Winter
97 Docket 48-11 at 9, ¶ 13 (Case No. 3:23-cv-00058-SLG).
98 Final SEIS at 237.
99 Docket 23-1 at 26 (Case No. 3:23-cv-00058-SLG).
100 Final SEIS at 327.
101 Final SEIS at 239.
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prerequisite to preliminary injunctive relief.”106 Thus, to show irreparable harm,
Plaintiffs’ declarations at a minimum must show that at least one or more of their
members will be irreparably harmed if the Winter 2023 Construction Activities were
to proceed.
Dr. Rosemary Ahtuangaruak, the Mayor of the City of Nuiqsut, expresses
numerous concerns about the environmental impacts of gravel mining and the
construction of gravel roads.107 As this Court observed in the prior challenge to
the Willow Project, “there is a strong likelihood of irreparable environmental
consequences once blasting operations commence.”108 However, Dr.
Ahtuangaruak has not shown how these environmental impacts would cause
“substantial and immediate” irreparable harm to her.109 When the Court in 2021
temporary enjoined ConocoPhillips from breaking ground at the Tiŋmiaqsiuġvik
Mine Site, the Court relied in large part on a declaration that Dr. Ahtuangaruak filed
at that time stating that she would experience irreparable harm to her ability to
“hunt caribou where the mine is going to be located.”110 But in her current
106 Caribbean Marine Servs. Co., 844 F.2d at 674 (emphasis in the original).
107 See generally Docket 24-23 (Case No. 3:23-cv-00061-SLG).
108 Sovereign Iñupiat for a Living Arctic, 2021 WL 454280, at *4.
109 Lyons, 461 U.S. at 111.
110 Sovereign Iñupiat for a Living Arctic, 2021 WL 454280, at *3.
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declaration submitted for purposes of this motion, she explains that “it is no longer
possible” to take her boat up the Tiŋmiaqsiuġvik River “because of a piling that
was placed where the river enters Colville.”111 And she has not demonstrated that
if she were unable to hunt caribou at the proposed 10-acre mine site, it would
impact her ability to obtain caribou for subsistence use. She also explains that she
uses and enjoys an unspecified area “near” the gravel site, which she describes
as “beautiful” and “a place of wellness for [her].” She adds that she has gone
walking and berry-picking near the mine site as recently as the summer of 2022,
but she does not specify how near to the proposed gravel site she traveled.112 To
the extent that Dr. Ahtuangaruak avers that mining and the associated construction
would interfere with her enjoyment of the area “near” the mine site, she has not
shown that irreparable harm is likely.
Plaintiffs also filed Daniel Ritzman’s declaration. Mr. Ritzman resides in the
state of New Mexico; he states that he has travelled to the NPR-A numerous times
since 1996.113 In his declaration, he describes his plan to “return to the Utukok
Uplands region in the summer of 2023 to guide a trip on the Ipnavik River and to
do a personal float on the Colville.” He avers that if the gravel mine opens near
111 Docket 24-23 at 26, ¶ 53 (Case No. 3:23-cv-00061-SLG).
112 Docket 24-23 at 26, ¶ 53 (Case No. 3:23-cv-00061-SLG).
113 Docket 23-6 at 3, ¶ 8, 10–13, ¶¶ 25–31 (Case No. 3:23-cv-00058-SLG).
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the Tiŋmiaqsiuġvik River, “it would definitely harm [his] experience, and it would
make [him] reconsider [his] plans.”114 However, the Tiŋmiaqsiuġvik mine would be
located many miles away from the Colville River and Ipnavik River where he plans
his float trips.115 And even if Mr. Ritzman plans to travel on the Tiŋmiaqsiuġvik
River, it is not at all clear that he would be able to see the mine from the river, as
the mine would be over 500 feet away.116 Moreover, Mr. Ritzman will travel in the
summer and the mining will only occur in the winter. Mr. Ritzman’s declaration
does not clearly demonstrate that he will suffer irreparable harm absent an
injunction of the Winter 2023 Construction Activities because his future travel plans
in Alaska would not take him to the gravel mine site or the gravel road extension
site.
Plaintiffs rely on the Ninth Circuit’s opinion in Alliance for the Wild Rockies
v. Cottrell for the proposition that harms like those averred by Dr. Ahtuangaruak
and Mr. Ritzman, such as the “ability to ‘view, experience, and utilize’ . . . areas in
their undisturbed state,” nonetheless satisfy the likelihood of irreparable injury
114 Docket 23-6 at 13–14, ¶¶ 32-33 (Case No. 3:23-cv-00058-SLG).
115 The Tiŋmiaqsiuġvik mine would be located several miles west of Nuiqsut, and the Colville
River is several miles east of Nuiqsut. Final SEIS Figure ES.2 (map). The Ipnavik River is a
tributary of the Colville River and is located even further from the proposed mine.
116 Final SEIS at 177.
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requirement articulated in Winter.117 In Alliance for the Wild Rockies, the alleged
injury would have prevented the plaintiffs’ members from using and enjoying 1,652
acres of forest, which represented six percent of the acreage damaged by fire.
The plaintiffs’ members testified that they used that forest acreage "for work and
recreational purposes, such as hunting, fishing, hiking, horseback riding, and
cross-country skiing.” The Ninth Circuit described the members’ loss of use and
enjoyment of this area as “hardly a de minimus injury” and concluded that there
was irreparable harm to the plaintiffs’ members.118 In this case, by contrast, the
Winter 2023 Construction Activities at the Tiŋmiaqsiuġvik Mine Site and other
activities will cause surface disruption on up to 38.5 acres of a reserve spanning
23,229,653 acres.119 To be clear, the Willow Project in its entirety would have a
large environmental impact, but the Court’s consideration at this time is limited to
the environmental consequences of approximately 21 days of construction at the
end of the Winter 2023 Construction Season.120 Mr. Kunaknana, Dr.
Ahtuangaruak, and Mr. Ritzman have each clearly articulated their deep
appreciation and respect for the region, but none of them has demonstrated that
117 All. for the Wild Rockies, 632 F.3d at 1135.
118 Id.
119 Docket 48-11 at 9, ¶ 13 (Case No. 3:23-cv-00058-SLG).
120 Docket 22-1 at 5, ¶ 11 (Case No. 3:23-cv-00058-SLG).
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irreparable harm is likely, not a mere possibility.123 The Court concludes that
Plaintiffs have not made the requisite showing that they would likely be irreparably
harmed if the planned Winter 2023 Construction Activities proceed.
II. Balance of the Equities and Public Interest
Although the Court’s finding on irreparable harm is sufficient of itself to
warrant the denial of Plaintiffs’ motions, the Court also addresses the balance of
the equities and the public interest factors.124
The government is a party to this action, so the final two Winter factors—the
balance of the equities factor and the public interest factor—merge.125 In
“balanc[ing] the competing claims of injury,” a court “must consider the effect on
each party of the granting or withholding of the requested relief.”126 Because
environmental injury specifically “can seldom be adequately remedied by money
damages and is often permanent or at least of long duration,” the “balance of
harms will usually favor the issuance of an injunction to protect the environment” if
123 Winter, 555 U.S. at 22.
124 All. for the Wild Rockies, 632 F.3d at 1135 (citing Miller v. Gammie, 335 F.3d 889, 900 (9th
Cir. 2003) (en banc) (explaining that Winter “requires the plaintiff to make a showing on all four
prongs”)).
125 Drakes Bay Oyster Co., 747 F.3d at 1092 (citing Nken, 556 U.S. at 435).
126 Amoco Prod. Co., 480 U.S. at 542.
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“such injury is sufficiently likely.”127 However, the law does not “allow us to
abandon a balance of harms analysis just because a potential environmental injury
is at issue,”128 and “[e]conomic harm may indeed be a factor in considering the
balance of equitable interests.”129 An injunction “is a matter of equitable
discretion,” and “[t]he assignment of weight to particular harms is a matter for
district courts to decide.”130
Plaintiffs’ motions require the Court to balance the environmental harms that
would be caused if the Winter 2023 Construction Activities were allowed to
proceed against the economic and other harms that would occur if those activities
were precluded while the merits in this case are determined. The Ninth Circuit’s
decision in Earth Island Institute v. Carlton sheds light on how these harms should
be balanced. In that case, the United States Forest Service sought to implement
127 Id. at 545.
128 Lands Council, 537 F.3d at 1005 (citing Forest Conservation Council v. U.S. Forest Serv., 66
F.3d 1489, 1496 (9th Cir. 1995)). See W. Watersheds Project v. Salazar, 692 F.3d 921, 923
(9th Cir. 2012) (“In balancing the equities, the district court properly weighed the environmental
harm posed by [a solar energy] project against the possible damage to project funding, jobs,
and the state and national renewable energy goals that would result from an injunction halting
project construction, and concluded that the balance favored” denial of preliminary injunction
that would have halted project construction.).
129 Earth Island Inst. v. Carlton, 626 F.3d 462, 475 (9th Cir. 2010) (first citing Amoco Prod. Co.,
480 U.S. at 545; and then citing Lands Council, 537 F.3d at 1005 (holding that the district court
did not clearly err in concluding that the balance of harms did not tip in environmental
organization’s favor where a Forest Service project would “further the public’s interest in aiding
the struggling local economy and preventing job loss”)).
130 Id. (citing Winter, 555 U.S. at 32).
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be driving gravel trucks at the new Willow mine site” this winter and is relying on
the income for his daughter’s braces and to buy ammunition and fuel for
subsistence hunting.139 Christopher Ledgerwood, the General Manager of Nanuq,
Inc., states that “Nanuq’s Willow work for this construction season would provide
approximately 20 positions for Nuiqsut residents.”140 And Nellie Kaigelak, who also
lives in Nuiqsut, explains that Kuukpik has employed four people since the Willow
Project was approved to monitor construction activities at the ice road and future
mine site. She explains that these jobs “are some of the best jobs in Nuiqsut for
local residents” because they pay “a very good wage” and “keep locals connected
to the land even while industry is operating there.”141
If the Winter 2023 Construction Activities do not go forward, these economic
harms would extend beyond Nuiqsut. The Arctic Slope Regional Corporation
(“ASRC”) maintains that a preliminary injunction would negatively impact its
shareholders “by delaying the Project’s many benefits, including job opportunities,
workforce development and training programs, tax revenues, grant-making
capabilities for needed community projects and services, and additional dividend
income the Project will bring” at a time when local subsistence communities are
139 Docket 48-7 at 2, ¶ 5 (Case No. 3:23-cv-00058-SLG).
140 Docket 53-4 at 1–2, ¶¶ 2, 5 (Case No. 3:23-cv-00061-SLG).
141 Docket 53-2 at 6–7, ¶¶ 15–16 (Case No. 3:23-cv-00058-SLG).
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struggling “to rebound from pandemic-induced economic hardship.”142 The Acting
Commissioner of the Alaska Department of Labor and Workforce Development
maintains that a delay in the Project “would have real impacts to employment
outcome for Alaskans, especially for Alaskans living near the Willow Project,
including the residents of Nuiqsut.”143 In addition to these economic harms to
Alaskans, the Court presumes that ConocoPhillips will experience some economic
impact if the Winter 2023 Construction Activities were enjoined because
ConocoPhillips has already spent money to build ice roads this season that it would
not be able to recoup.144 However, it bears noting that ConocoPhillips began
construction this winter knowing that there was a substantial likelihood that
Plaintiffs would seek an injunction to halt construction.145
142 Docket 50 at 4, 12 (Case No. 3:23-cv-00058-SLG).
143 Docket 52-2 at 1–2, ¶ 1–2 (Case No. 3:23-cv-00058-SLG).
144 ConocoPhillips did not provide evidence as to what its economic loss would be for this year.
Instead, ConocoPhillips contends that an injunction would place the entire project at risk
because their leases are set to expire in September 2029 if Willow does not produce oil. Docket
48 at 48–49 (Case No. 3:23-cv-00058-SLG). However, the NPRPA provides that “[n]o lease
issued under this section covering lands capable of producing oil or gas in paying quantities
shall expire because the lessee fails to produce the same due to circumstances beyond the
control of the lessee.” 42 U.S.C. § 6506a(i)(6). Plaintiffs’ lawsuits challenging the ROD are
circumstances beyond the control of ConocoPhillips. Moreover, the persuasiveness of
ConocoPhillips’ argument that the entire Willow Project is at risk by a temporary injunction is
undermined by record evidence showing how these leases have been extended with no
production. Docket 24-7 at 4 (Case No. 3:23-cv-00061-SLG) (list of ConocoPhillips’ oil and gas
leases for NPR-A beginning in 1999).
145 Docket 22-1 at 3–4, ¶ 6 (Case No. 3:23-cv-00058-SLG) (Counsel for ConocoPhillips
contacted counsel for Trustees for Alaska the same day BLM issued the ROD, expressing
ConocoPhillips’ intent to intervene in this case and begin Winter 2023 Construction Activities).
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that case.150 It noted that “on the other side of the balance of harms was the fact
that the [oil companies] had committed approximately $70 million to exploration . .
. which they would have lost without chance of recovery had exploration been
enjoined.”151 The Supreme Court’s decision suggests that the economic harms,
particularly to the residents of Nuiqsut and elsewhere on the North Slope, if Winter
2023 Construction Activities are enjoined, may outweigh any potential harm to
subsistence hunters that construction may cause.152
Moreover, many subsistence hunters contend that the planned construction
of a gravel road and boat ramp this winter would provide a benefit to them because
they would have faster and safer access to subsistence resources.153 Without
roads, people hunt by foot, boat, or four-wheeler in the summer and by
150 Id. at 545.
151 Id.
152 Lands Council, 537 F.3d at 1005 (upholding denial of a preliminary injunction motion against
project that “further[s] the public’s interest in aiding the struggling local economy and preventing
job loss”); Or. Nat. Desert Ass’n v. Bushue, 594 F. Supp. 3d 1259, 1271 (D. Or. 2022) (denying
as against public interest preliminary injunction that “could impose significant financial harm,
threatening jobs and livelihoods”); Earth Island Inst. v. Gould, No. 1:14-cv-01140-KJM-SKO,
2014 WL 4082021, at *8 (E.D. Cal. Aug. 19, 2014) (denying preliminary injunction where “[t]he
potential economic losses include the potential loss of jobs in the locality”); Protect Our Cmtys.
Found. v. U.S. Dep’t of Agric., No. 11-CV-000093 BEN (BGS), 2011 WL 13356151, at *12 (S.D.
Cal. Sept. 15, 2011) (“Maintaining jobs is in the public interest.” (citation omitted)).
153 See, e.g., Docket 48-3; Docket 48-4; Docket 48-5; Docket 48-6; Docket 53-2 (Case No. 3:23-
cv-00058-SLG).
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snowmachine in the winter.154 Nuiqsut resident Ms. Kaigelak explains that the
tundra “is very wet and marshy,” so it is “easy to get [four-wheelers] stuck and
there was more damage to the tundra,” in addition to the fact that it “took more
time[] and you couldn’t go as far to find caribou.”155 Another Nuiqsut resident,
Bryan Nukapigak, explains that access to caribou by boats is limited and he has
“spent a lot of time waiting” for caribou to approach the river.156 He adds that “the
road extension from GMT2 will be very beneficial for subsistence access” and that
these roads will also be “very beneficial for search and rescue.”157 The Kuukpik
Corporation maintains that the road construction “would provide a benefit even if
plaintiffs ultimately prevail” because subsistence users would “get their own road
on Conoco’s dime.”158 With respect to the proposed boat ramp, Ms. Kaigelak
explains that it currently takes “a few hours” to access the “really good white
fishing” on the Tiŋmiaqsiuġvik River, “[s]o it would be better to be able to trailer a
boat to those rivers on the gravel road.”159 Overall, the record does not
154 Docket 48-3 at 2, ¶ 4 (Case No. 3:23-cv-00058-SLG).
155 Docket 53-2 at 2, ¶ 4 (Case No. 3:23-cv-00058-SLG).
156 Docket 48-3 at 2, ¶ 4 (Case No. 3:23-cv-00058-SLG).
157 Docket 48-3 at 3–4, ¶¶ 8–9 (Case No. 3:23-cv-00058-SLG).
158 Docket 53 at 24 (Case No. 3:23-cv-00058-SLG).
159 Docket 53-2 at 5–6, ¶ 11 (Case No. 3:23-cv-00058-SLG).
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demonstrate that the construction of the gravel road extension and boat launch
would be against the interest of most subsistence uses.
The Court also gives considerable weight to the fact that Kuukpik, the North
Slope Borough, and ASRC have all intervened to express their support for the
Willow Project and Winter 2023 Construction Activities.160 As the Final SEIS’s
Environmental Justice analysis recognizes, the residents of Nuiqsut are “most
likely to be directly affected by social or environmental changes associated with
Project development.”161 Kuukpik explains that it “only supported Conoco’s use of
Kuukpik land to advance the Willow Project after much deliberation and
consideration of the interests of Nuiqsut, Kuukpik’s shareholders, and the residents
across the North Slope and the State of Alaska, all of whom will benefit from
Kuukpik and Nuiqsut shouldering some of the burdens and impacts of this
Project.”162 And yet, the Court acknowledges that support of this project is not
unanimous among Alaska Natives, as demonstrated most acutely to this Court by
Dr. Ahtuangaruak, Mayor of Nuiqsut, whose lengthy declaration details her
concerns about the Willow Project.163
160 Docket 47; Docket 50; Docket 53 (Case No. 3:23-cv-00058-SLG).
161 Final SEIS at 347.
162 Docket 53 at 28 (Case No. 3:23-cv-00058-SLG).
163 Docket 24-23 (Case No. 3:23-cv-00061-SLG).
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The Ninth Circuit has explained that “[t]he public interest inquiry primarily
addresses impact on non-parties rather than parties.”164 “This is particularly the
case where ‘the impact of an injunction reaches beyond the parties, carrying with
it a potential for public consequences.’”165 A preliminary injunction in this case
would implicate issues of broader public concern that has significant public
consequences. In this regard, the Court considers the fact that the Alaska House
and Senate unanimously adopted a resolution on February 20, 2023, stating that
“a further delay in approval or construction of the Willow project . . . is not in the
public interest.”166 The Ninth Circuit has explained that “the district court should
give due weight to the serious consideration of the public interest in [a] case that
has already been undertaken by the responsible state officials” who acted
“unanimously” with respect to “the subject of this [litigation].”167 Indeed, the Ninth
Circuit has held that “our consideration of the public interest is constrained” where
unanimous legislative action has “already considered that interest.” The Ninth
164 Inst. of Cetacean Rsch. v. Sea Shepherd Conservation Soc’y, 725 F.3d 940, 946 (9th Cir.
2013) (quoting Bernhardt v. Los Angeles County, 339 F.3d 920, 931 (9th Cir. 2003)).
165 Id. (quoting Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009)).
166 Docket 53-6 at 4 (Case No. 3:23-cv-00058-SLG) (House Joint Resolution No. 6).
167 Stormans, Inc., 586 F.3d at 1140; see also Burford v. Sun Oil Co., 319 U.S. 315, 318 (1943)
(explaining in the context of “the general regulatory system devised for the conservation of oil
and gas in Texas” that it “is in the public interest that federal courts of equity should exercise
their discretionary power with proper regard for the rightful independence of state governments
in carrying out their domestic policy” (citation omitted)).
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Case No. 3:23-cv-00058-SLG, Sovereign Iñupiat for a Living Arctic, et al. v. BLM, et al.
Case No. 3:23-cv-00061-SLG, Ctr. for Biological Diversity, et al. v. BLM, et al.
Order Re Motions for Temporary Restraining Order and Preliminary Injunction
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Circuit added, “[w]e are not sure on what basis a court could conclude that the
public interest is not served by [legislative action] adopted in such a fashion.”168 In
light of the foregoing, the Court gives considerable weight to the Alaska House and
Senate’s unanimous conclusion that proceeding with the Winter 2023 Construction
Activities is in the public interest.
Alaska’s Congressional delegation has also expressed its unanimous
support of the Willow Project and specifically their support for the construction
activities proposed for this winter.169 In the amicus brief filed by the Alaska
Congressional Delegation and Alaska State Legislature, they assert that “[i]t is
uncontested that an injunction would kill many Alaskan jobs and deprive Alaskans
of direct and indirect economic benefits associated with imminent development
activities.”170 Moreover, allowing the Winter 2023 Construction Activities to
proceed would be consistent with the Congressional directive to the Secretary of
168 Golden Gate Rest. Ass’n v. City & County of San Francisco, 512 F.3d 1112, 1126–27 (9th
Cir. 2008).
169 Docket 49-1 at 5 (Case No. 3:23-cv-00058-SLG) (“The Alaska Congressional Delegation and
the Alaska State Legislature jointly file this brief because the injunction sought by Plaintiffs
would do considerable harm to the public interest—including at the local, state, and national
levels.”). See also 49-6 (Case No. 3:23-cv-00058-SLG) (September 20, 2022, letter from United
States Senators Lisa Murkowski and Dan Sullivan and Representative Mary Peltola to Secretary
Haaland expressing their support for the Willow Project). This is not to say, of course, that
Congressional support has been unanimous, as there have been approximately two dozen
members of Congress who have publicly opposed the Willow Project. See, e.g., Docket 63-7
(Case No. 3:23-cv-00058-SLG) (letter from members of Congress to President Biden
expressing opposition to the Willow Project).
170 Docket 49-1 at 14 (Case No. 3:23-cv-00058-SLG).
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Case No. 3:23-cv-00061-SLG, Ctr. for Biological Diversity, et al. v. BLM, et al.
Order Re Motions for Temporary Restraining Order and Preliminary Injunction
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Interior to conduct “an expeditious program of competitive leasing of oil and gas in
the” NPR-A.171 The Court concludes that the strong legislative support at both the
state and federal levels to proceed with the Winter 2023 Construction Activities is
a factor that tips strongly against the issuance of a preliminary injunction at this
time.172
In sum, the Court has weighed the environmental harm posed by the
proposed Winter 2023 Construction Activities against the economic damages,
benefits to most subsistence users, and the state and federal legislative
pronouncements of the public interest that would be impacted by a preliminary
injunction prohibiting these construction activities at this time, and concludes that
the balance of the equities and the public interest tip sharply against preliminary
injunctive relief. The Court has further determined that Plaintiffs have not
established that irreparable injury to their members is likely if Winter 2023
Construction Activities proceed. Because all four of the Winter factors must be
171 Pub. L. No. 96-514, 94 Stat. 2957 (1980) (codified at 42 U.S.C. § 6506a).
172 United States v. McIntosh, 833 F.3d 1163, 1172 (9th Cir. 2016) (“It is ‘emphatically . . . the
exclusive province of the Congress not only to formulate legislative policies and mandate
programs and projects, but also to establish their relative priority for the Nation. Once Congress,
exercising its delegated powers, has decided the order of priorities in a given area, it is for . . .
the courts to enforce them when enforcement is sought.’” (quoting Tenn. Valley Auth. v. Hill, 437
U.S. 153, 194 (1978))).
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Case No. 3:23-cv-00058-SLG, Sovereign Iñupiat for a Living Arctic, et al. v. BLM, et al.
Case No. 3:23-cv-00061-SLG, Ctr. for Biological Diversity, et al. v. BLM, et al.
Order Re Motions for Temporary Restraining Order and Preliminary Injunction
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met to obtain preliminary injunctive relief, the Court does not reach address the
likelihood of Plaintiffs’ success on the merits at this time.173
CONCLUSION
In light of the foregoing, SILA Plaintiffs’ Motion for Temporary Restraining
Order and Preliminary Injunction at Docket 23 in Case No. 3:23-cv-00058-SLG and
CBD Plaintiffs’ Motion for Preliminary Injunction at Docket 24 in Case No. 3:23-cv-
00061-SLG are each DENIED.
DATED this 3rd day of April, 2023 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
173 See Winter, 555 U.S. at 23–24 (“[E]ven if plaintiffs have shown irreparable injury . . . any
such injury is outweighed by the public interest . . . . A proper consideration of these factors
alone requires denial of the requested injunctive relief. For the same reason, we do not address
the lower courts’ holding . . . [with respect to] a likelihood of success on the merits.”); see also
All. for the Wild Rockies, 632 F.3d at 1135 (explaining that Winter “requires the plaintiff to make
a showing on all four prongs”).
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Center for Biological Diversity et al v. Bureau of Land Management et al

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