Center for Biological Diversity et al v. Bureau of Land Management et al

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 INJUNCTION PENDING APPEAL
Before the Court are SILA Plaintiffs’ Motion for Injunction Pending Appeal at
Docket 169 (Case No. 3:23-cv-00058-SLG)1 and CBD Plaintiffs’ Rule 62(d) Motion
for Injunction Pending Appeal at Docket 190 (Case No. 3:23-cv-00061-SLG).2
Federal Defendants responded at Docket 175 (Case No. 3:23-cv-00058-SLG).3
Intervenor-Defendants 	ConocoPhillips, 	Inc. 	(“ConocoPhillips”), 	Kuukpik
Corporation (“Kuukpik”), Arctic Slope Regional Corporation (“ASRC”), North Slope
Borough (“NSB”), and the State of Alaska (“State”) responded in opposition at
Dockets 177, 180-82, and 184 (Case No. 3:23-cv-00058-SLG), respectively. 	In
addition, at Docket 183 (Case No. 3:23-cv-00058-SLG), the Alaska Congressional
Delegation 	and 	Alaska State Legislature have 	filed 	an 	amicus brief.4 	Oral
1 In Case No. 3:23-cv-00058-SLG, SILA Plaintiffs are Sovereign Iñupiat for a Living Arctic,
Alaska Wilderness League, Environment America, Northern Alaska Environmental Center,
Sierra Club, and The Wilderness Society.
2 In Case No. 3:23-cv-00061-SLG, CBD Plaintiffs are Center for Biological Diversity, Defenders
of Wildlife, Friends of the Earth, Greenpeace, Inc., and Natural Resources Defense Council, Inc.
3 In Case No. 3:23-cv-00058-SLG, Federal Defendants are the U.S. Bureau of Land
Management; U.S. Fish and Wildlife Service; and the U.S. Department of the Interior. In Case
No. 3:23-cv-00061-SLG, Federal Defendants are the same with the addition of the National
Marine Fisheries Service; U.S. 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 Alaska Regional Director of U.S. Fish and Wildlife Service; and
Jonathan Kurland, in his official capacity as Regional Administrator of National Marine Fisheries
Service.
4 The Court granted the Motion for Leave to File an Amicus Curiae Brief. Docket 187 (Case No.
3:23-cv-00058-SLG).
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argument was not requested and was not necessary to the Court's determination.
For the reasons set forth below, Plaintiffs’ motions will be denied.
BACKGROUND
Plaintiffs challenge the Bureau of Land Management’s (“BLM”) approval of
the Willow Project, an oil and gas development by ConocoPhillips in the National
Petroleum 	Reserve 	in 	Alaska 	(“Reserve”).5 	Bringing 	suit 	pursuant 	to 	the
Administrative Procedure Act (“APA”), 5 U.S.C. § 706, Plaintiffs claimed that BLM
and other Federal Defendants violated the National Environmental Policy Act of
1969 	(“NEPA”), 	42 	U.S.C. 	§ 	4321 	et 	seq., 	the 	Naval 	Petroleum 	Reserves
Production Act ("NPRPA"), 42 U.S.C. § 6501, et seq., the Alaska National Interest
Lands 	Conservation 	Act 	(“ANILCA”), 	16 	U.S.C. 	§ 	3101 	et 	seq., 	and 	the
Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq.6
On 	April 	3, 	2023, 	the 	Court 	denied 	Plaintiffs’ 	Motions 	for 	Temporary
Restraining Order and Preliminary Injunction to halt Willow Project construction for
the remainder of that winter season.7 	The Court found that Plaintiffs could not
show a likelihood of irreparable harm and “the balance of the equities and the
5 The Court assumes familiarity with the facts of this case. For additional factual background,
see Docket 166 at 4-9 (Case No. 3:23-cv-00058-SLG) (Order Mot. for Summ. J).
6 See Docket 105 (Case No. 3:23-cv-00058-SLG); Docket 115 (Case No. 3:23-cv-00061-SLG).
7 Sovereign Iñupiat for a Living Arctic v. Bureau of Land Mgmt., Case No. 3:23-cv-00058-SLG,
2023 WL 2759864, at *15 (D. Alaska Apr. 3, 2023), appeal dismissed, No. 23-35226, 2023 WL
4339382 (9th Cir. May 19, 2023).
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public interest tipped sharply against preliminary injunctive relief.”8 	After initially
appealing the denial of a preliminary injunction, Plaintiffs later sought voluntary
dismissal of those appeals, which the Ninth Circuit granted on May 19, 2023. 9
On November 9, 2023, this Court found that Federal Defendants did not
violate the APA and denied Plaintiffs’ request for vacatur of approval of the Willow
Project.10 Plaintiffs filed notices of appeal to the Ninth Circuit Court of Appeals.11
They now seek to enjoin “all construction activities related to Willow to ensure the
status quo is maintained” while their appeals are pending.12
LEGAL STANDARD
“The standard for evaluating an injunction pending appeal is similar to that
employed by district courts in deciding whether to grant a preliminary injunction.”13
8 Sovereign Iñupiat for a Living Arctic, 2023 WL 2759864, at *11, 14-15.
9 Sovereign Iñupiat for a Living Arctic, 2023 WL 4339382, at *1.
10 Docket 166 at 109 (Case No. 3:23-cv-00058-SLG).
11 Docket 168 (Case No. 3:23-cv-00058-SLG) (Notice of Appeal); Docket 186 (Case No. 3:23-
cv-00061-SLG) (Notice of Appeal).
12 Docket 169 at 3 (Case No. 3:23-cv-00058-SLG) (Mot. for Inj. Pending Appeal) (italics in
original). See Docket 190 at 3 (Case No. 3:23-cv-00061-SLG) (Mot. for Inj. Pending Appeal
requesting “that the Court enjoin implementation of Defendant Bureau of Land Management’s
(BLM) approval of the Project, including authorization of construction planned to resume this
winter, for the duration of the appeal.”). The Court granted Plaintiffs’ Motions for Expedited
Consideration of the Motions for Injunction Pending Appeal. Docket 172 (Case No. 3:23-cv-
00058-SLG); Docket 189 (Case No. 3:23-cv-00061-SLG).
13 Feldman v. Ariz. Sec’y of State’s Off., 843 F.3d 366, 367 (9th Cir. 2016) (citing Lopez v.
Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983) and second citation omitted); see also Nken v.
Holder, 556 U.S. 418, 428-29 (2009) (“A stay pending appeal certainly has some functional
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Parties 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 injunctive relief; (3) the balance of equities tips in their favor; and (4)
an injunction is in the public interest.14 Where, as here, the government is a party
to the action, the final two Winter factors—the balance of the equities and the public
interest—merge.15
DISCUSSION
I. 	Likelihood of Success on the Merits
Plaintiffs seeking injunctive relief must show a likelihood of success on the
merits.16 	Alternatively, in the Ninth Circuit, if a plaintiff demonstrates “that there
are ‘serious questions going to the merits’—a lesser showing than likelihood of
success on the merits—then a preliminary injunction may still issue if the ‘balance
overlap with an injunction, particularly a preliminary one. Both can have the practical effect of
preventing some action before the legality of that action has been conclusively determined. But
a stay achieves this result by temporarily suspending the source of authority to act—the order or
judgment in question—not by directing an actor’s conduct. A stay ‘simply suspend[s] judicial
alteration of the status quo,’ while injunctive relief ‘grants judicial intervention that has been
withheld by lower courts.’” (quoting Ohio Citizens for Responsible Energy, Inc. v. Nuclear Regul.
Comm’n, 479 U.S. 1312, 1313 (1986) (Scalia, J., in chambers))).
14 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
15 Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken, 556 U.S.
at 435).
16 Winter, 555 U.S. at 20.
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of 	hardships 	tips 	sharply 	in 	the 	plaintiff’s 	favor.’”17 	“Serious 	questions 	are
‘substantial, difficult and doubtful, as to make them a fair ground for litigation and
thus for more deliberative investigation.’”18 They “need not promise a certainty of
success, nor even present a probability of success, but must involve a ‘fair chance
on the merits.’”19
SILA Plaintiffs assert that on appeal they are “likely to prevail on [their]
claims that BLM failed to comply with the . . . []NPRPA[] and . . . []NEPA[] by failing
to 	consider 	a 	reasonable 	range 	of 	alternatives 	sufficient 	to 	protect 	surface
resources and mitigate impacts to subsistence uses and resources.”20 	Similarly,
CBD Plaintiffs argue that “they are likely to succeed on the merits of their claims
that BLM violated . . . []NEPA[] by failing to consider a reasonable range of
alternatives and by failing to consider Willow’s reasonably foreseeable climate
impacts.”21 As several Defendants correctly observe, Plaintiffs’ current motions do
17 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)). See
also All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011) (holding
“serious questions” approach still valid “when applied as a part of the four-element Winter
test.”).
18 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)).
19 Gilder, 936 F.2d at 422 (quoting Marcos, 862 F.2d at 1362).
20 Docket 169 at 9-10 (Case No. 3:23-cv-00058-SLG).
21 Docket 190 at 4 (Case No. 3:23-cv-00061-SLG).
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not present any new arguments regarding their NEPA and NPRPA claims beyond
what was already considered and rejected by the Court.22 	For the reasons
discussed in the Court’s order denying Plaintiffs’ request for vacatur of the approval
of the Willow Project, the Court finds that Plaintiffs have not shown a likelihood of
success on the merits on their claims.23
Further, Plaintiffs have not raised serious questions going to the merits on
their claims. 	CBD Plaintiffs cite City of Oakland v. Holder, In re Porrett, and
Masters Software, Inc. v. Discovery Communications, Inc., for their assertion that
they have raised a serious question sufficient for an injunction pending appeal.24
In City of Oakland, the plaintiff raised an issue of first impression, which the district
court found presented a serious question.25 	In Porrett, the court distinguished a
case that, “at first blush, appear[ed] to be on point” to ultimately find that the case’s
analytical approach did not apply after a “close reading” of case law.26 	And
Masters Software granted the defendant’s motion to stay a preliminary injunction
22 See, e.g., Docket 175 at 5 (Case No. 3:23-cv-00058-SLG); Docket 177 at 20-21 (Case No.
3:23-cv-00058-SLG).
23 Docket 166 at 11-47 (Case No. 3:23-cv-00058-SLG).
24 Docket 190 at 5 (Case No. 3:23-cv-00061-SLG) (first citing City of Oakland, 961 F. Supp. 2d
1005, 1013 (N.D. Cal. 2013); then citing In re Porrett, Case No. 09-03881-JDP, 2016 WL
1689047, at *2 (D. Idaho Apr. 25, 2016); and then citing Masters Software, Case No. C10-
405RAJ, 2010 WL 11692803, at *3 (W.D. Wash. Aug. 13, 2010)).
25 961 F. Supp. 2d at 1012-13.
26 In re Porrett, 2016 WL 1689047, at *2.
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pending appeal because plaintiff’s theory was “rarely successful” and so the
defendant 	“at 	least 	raised 	serious 	questions 	relevant 	to 	its 	prospects 	for
success.”27
In contrast, this case “involve[s] applying well-established Ninth Circuit law
to important and primarily legal questions”28 and does not present an issue of first
impression, competing analytical approaches, or a “rarely successful” legal theory.
Accordingly, Plaintiffs have not shown that there is a serious question going to the
merits of their claims.
II. 	Irreparable Harm
A party seeking injunctive relief pending appeal must show that they
themselves will suffer irreparable harm absent an injunction29 and that there is
“a probability of irreparable injury if the stay is not granted.”30 	“A plaintiff must
do more than merely allege imminent harm sufficient to establish standing; a
plaintiff must demonstrate immediate threatened injury as a prerequisite” to
27 Masters Software, 2010 WL 11692803, at *3.
28 Docket 190 at 4 (Case No. 3:23-cv-00061-SLG).
29 Lair v. Bullock, 697 F.3d 1200, 1214 (9th Cir. 2012) (“[W]e . . . focus on the individualized
nature of irreparable harm and not whether it is ‘categorically irreparable.’” (quoting Leiva-Perez
v. Holder, 640 F.3d 962, 969 (9th Cir. 2011))).
30 Id. (emphasis in original) (citing Leiva-Perez, 640 F.3d at 968).
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injunctive relief.31 	Further, “[t]here must be a ‘sufficient causal connection’
between the alleged irreparable harm and the activity to be enjoined,” such as a
“showing that ‘the requested injunction would forestall’ the irreparable harm.”32
“[T]he movant, by a clear showing, carries the burden of persuasion.”33
“Environmental 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.”34 	“ Of course, this does not mean that ‘any potential environmental
injury’ warrants an injunction.”35 	Because injunctive relief pending appeal is an
equitable remedy, there is no presumption of irreparable harm, even in cases
involving environmental impact.36
Plaintiffs seek to enjoin Willow’s upcoming winter construction activities in
31 Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (emphasis in
original) (citing L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1201 (9th
Cir. 1980)).
32 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)).
33 Villegas Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (emphasis in original) (citation
omitted).
34 Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987).
35 All. for the Wild Rockies, 632 F.3d at 1135 (quoting Lands Council v. McNair, 537 F.3d 981,
1004 (9th Cir. 2008)).
36 Amoco Prod. Co., 480 U.S. at 544-55 (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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order 	to 	“maintain 	current 	conditions 	on 	the 	ground” 	while 	they 	appeal.37
Presently, non-surface-disturbing activities are ongoing.38 ConocoPhillips intends
to “recommence” surface-disturbing activities “no sooner than December 21,
2023,” and continuing through May 2024.39 	Therefore, the Court focuses on
whether Plaintiffs can show they will be irreparably harmed by ConocoPhillips’
planned 2023-2024 winter construction activities unless this Court enters an
injunction pending appeal.
During last winter’s construction season, which concluded in May 2023,
ConocoPhillips opened a gravel mine site (Mine Site Area 2), built two miles of
gravel road to extend a road referred to as GMT-2, and began constructing a
subsistence boat ramp on the Ublutuoch (Tiŋmiaqsiuġvik) River.40 Planned 2023-
2024 surface-disturbing winter work includes installation of approximately 13 miles
of pipelines and supports, eight miles of gravel road, a road spur and pad access,
37 Docket 190 at 3 (Case No. 3:23-cv-00061-SLG). See Docket 169 at 3 (Case No. 3:23-cv-
00058-SLG).
38 Docket 177-11 at ¶¶ 7-8 (Case No. 3:23-cv-00058-SLG).
39 Docket 177 at 49 (Case No. 3:23-cv-00058-SLG); Docket 177-11 at ¶ 7 (Case No. 3:23-cv-
00058-SLG).
40 Docket 177-11 at ¶ 3 (Case No. 3:23-cv-00058-SLG); Docket 177-12 at ¶ 5 (Case No. 3:23-
cv-00058-SLG). GMT-2 refers to Greater Mooses Tooth-2, a drilling pad. The two miles of
gravel road ConocoPhillips built last season, and seven miles of proposed gravel road
construction during the 2023-2024 winter season, will extend the GMT-2 road to connect it to
the sites for the Willow Operations Center and Willow Central Facility. Docket 177-12 at ¶¶ 6,
11 (Case No. 3:23-cv-00058-SLG).
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an airstrip access road and airstrip apron, gravel pads for the Willow Central
Facility and Willow Operations Center, and a bridge; completion of the first
subsistence boat ramp; and construction of two additional subsistence ramps.41
Gravel mining will also continue at Mine Site Area 2, and ConocoPhillips plans to
open a second mine site (Mine Site Area 1).42 	Mine Site Area 1 will be slightly
closer to Nuiqsut than Mine Site Area 2, but both mines are “about 7 miles west of
Nuiqsut.”43 ConocoPhillips intends to have 1,800 personnel working on the Willow
Project during the 2023-2024 winter construction season.44 ConocoPhillips will not
produce any oil or gas at Willow during the 2023-2024 or 2024-2025 seasons45;
nor will there be any construction in the Teshekpuk Lake Special Area (“TLSA”)
during the 2023-2024 winter season.46
Plaintiffs raise concerns with harm to fishing resources due to the planned
2023-2024 Willow construction. Sam Kunaknana lives in Nuiqsut. He subsistence
41 Docket 177-12 at ¶ 6 (Case No. 3:23-cv-00058-SLG). See Docket 177-12 at 13-14 (Case No.
3:23-cv-00058-SLG) (maps showing winter 2023-2024 construction activities).
42 Docket 177-12 at ¶ 9 (Case No. 3:23-cv-00058-SLG).
43 Docket 177-12 at ¶ 9 (Case No. 3:23-cv-00058-SLG). See Docket 177-12 at 13 (Case No.
3:23-cv-00058-SLG).
44 Docket 177-11 at ¶ 11 (Case No. 3:23-cv-00058-SLG).
45 Docket 177-11 at ¶ 13 (Case No. 3:23-cv-00058-SLG) (noting ConocoPhillips aims to
“achieve first oil in 2029”).
46 ConocoPhillips will perform geotechnical work in the TLSA, but no construction. Docket 177-
12 at ¶ 14 (Case No. 3:23-cv-00058-SLG).
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fishes on Fish Creek and the Ublutuoch River, which he states “are located in the
vicinity of the proposed Willow project, and there are important subsistence fishing
areas downstream from the Willow project and Conoco’s gravel mine on the
Ublutuoch.” 	Oil “development activities have deterred [him] from fishing [on Fish
Creek].” Further, Willow’s “gravel mine is on a part of the Ublutuoch that [he] use[s]
and that is also upstream from where [he] fish[es] and hunt[s].” 	Because of the
gravel mine, Mr. Kunaknana is “not likely to be able to continue hunting and fishing
in these areas successfully if Willow’s construction is allowed to continue this
coming winter.”47 Dr. Rosemary Ahtuangaruak, the Mayor of Nuiqsut, is “worr[ied]”
that the gravel mine might “affect the water table” where “we put down our fish
nets,” that it might contaminate the water, and that it will contribute to erosion.48
However, BLM found that “fish would not be affected by blasting or gravel
excavation.”49 	While 	the 	Court 	acknowledges 	Mr. 	Kunaknana’s 	and 	Dr.
Ahtuangaruak’s apprehensions about downstream effects of the Willow Project on
fish, they do not establish any immediate threatened injury to fish causally
47 Docket 169-8 at ¶¶ 2, 8-10 (Case No. 3:23-cv-00058-SLG). Mr. Kunaknana’s claims of
irreparable harm are similar to those he made in support of the preliminary injunction. See
Sovereign Iñupiat for a Living Arctic, 2023 WL 2759864, at *8.
48 Docket 190-2 at ¶¶ 6, 26 (Case No. 3:23-cv-00061-SLG).
49 AR820904.
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connected to ConocoPhillips’ 2023-2024 planned winter construction activities.50
Several of Plaintiffs’ members expressed concern about Willow’s impact on
caribou and subsistence hunting.51 Mr. Kunaknana is
worried that blasting at the gravel mine, construction activities, and all
the industrial activity and roads from Willow will disturb and drive away
the caribou [he] depend[s] on, who stay in this area during the winter.
This past winter, there were caribou near the old mine site. 	When
they started blasting, the caribou disappeared from that area. As they
start blasting more and doing further construction around the new
mine site for Willow, [he] believe[s] the same will happen here.52
Siqiñiq Maupin is concerned that planned winter construction activities near
Teshekpuk 	Lake 	will 	harm 	the 	caribou 	herd 	that 	lives 	in 	that 	area.53 	Dr.
Ahtuangaruak and her family hunt caribou in the area where Willow winter
construction activities will occur and she claims that the “Willow industrial activities
that would begin this winter threaten to harm our use of the area during the time of
the activities and beyond.”54 She is also concerned that the “noises and activities
50 ConocoPhillips presented evidence that fishing continues despite oil and gas development.
Docket 177-2 at ¶ 19 (Case No. 3:23-cv-00058-SLG) (“I have nets set under the ice right now
for Arctic cisco, just 600 feet from the drilling pad at CD 4.”).
51 The Court does not consider a November 16, 2023, study filed by CBD Plaintiffs at Docket
190-1 (Case No. 3:23-cv-00061-SLG) because it is unsworn and there is no indication that it
was made under penalty of perjury. 28 U.S.C. § 1746. It was also not included in the
administrative record and CBD Plaintiffs have not demonstrated that it is publicly available.
52 Docket 169-8 at ¶ 16 (Case No. 3:23-cv-00058-SLG).
53 Docket 169-9 at ¶¶ 18-19 (Case No. 3:23-cv-00058-SLG).
54 Docket 190-2 at ¶ 15 (Case No. 3:23-cv-00061-SLG). Dr. Ahtuangaruak is also concerned
that ConocoPhillips will prohibit access to the GMT-2 road, which will harm her nephews’ ability
to travel further on to the tundra beyond the end of GMT-2 to hunt caribou. Docket 190-2 at ¶
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from the [gravel] mine will affect caribou migrations through that area.”55
BLM determined that Willow would likely “deflect . . . caribou from areas
where Nuiqsut hunters harvest them.”56 	BLM also found that 23 to 47 percent of
subsistence harvesters avoid hunting in areas of oil and gas development, but
those statistics also indicate that the majority of hunters do not avoid such areas.57
Additionally, “winter is not a primary hunting time for caribou”58 and “[o]verall
caribou harvests for the community of Nuiqsut as a whole have remained stable
over time.”59
Further, while Plaintiffs’ members assert that Willow will harm caribou and
their subsistence prospects, ConocoPhillips provided evidence that Willow’s gravel
18 (Case No. 3:23-cv-00061-SLG). However, she has not averred that she goes off the GMT-2
road to hunt caribou and that her access will similarly be obstructed. See Nat’l Wildlife Fed’n,
886 F.3d at 822 (“Plaintiffs seeking injunctive relief must show that they themselves are likely to
suffer irreparable harm . . . .”). In any event, while “[t]he Willow access road will be closed when
construction resumes this winter,” it “will be made available for local use again in summer of
2024 when the new gravel can be worked.” Docket 177-13 at ¶ 13 (Case No. 3:23-cv-00058-
SLG). Accordingly, any harm from the GMT-2 road closure would be short term and not
irreparable.
55 Docket 190-2 at ¶ 25 (Case No. 3:23-cv-00061-SLG).
56 AR824340.
57 AR821026.
58 AR824330. See also Docket 177-14 at ¶ 11 (Case No. 3:23-cv-00058-SLG) (“[T]he entire
[Willow] project area (which includes a 2.5-mile buffer around gravel infrastructure) overlaps
with just 0.92% of the Teshekpuk Caribou Herd Winter Seasonal range.”); Docket 177-13 at ¶ 4
(Case No. 3:23-cv-00058-SLG) (“January through April harvest of caribou (from all areas)
averages 7% percent of the annual harvest.”).
59 AR824327.
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road has provided a boon to caribou harvesting. Chester Hopson lives in Nuiqsut,
uses the gravel road that ConocoPhillips built last construction season “pretty
much every day,” and has “seen a lot of people harvesting caribou on that road.”60
Thomas Napageak, a Nuiqsut native, described that, last fall, he helped a hunting
party from Anaktuvuk Pass harvest 19 caribou from gravel roads at GMT-1 and
GMT-2.61 	Regarding the impact of noise from gravel mining on caribou, Mr.
Napageak averred that “Willow construction last year did not alter the migration”
of caribou and “[m]ost subsistence hunting takes place from the road away from
the mine site area.”62 Curtis Avhakana “observed a lot of caribou on the roads and
ice roads during construction activity” last winter and “[t]hey did not appear
bothered in the slightest by the activity.”63 	These competing narratives from
subsistence hunters do not support a finding that Plaintiffs have made the requisite
clear showing that their subsistence hunting activities will be irreparably harmed if
the 2023-2024 winter construction activities proceed.
Several 	of 	Plaintiffs’ 	members 	are 	concerned 	about 	other 	impacts 	of
60 Docket 177-8 at ¶¶ 2, 7 (Case No. 3:23-cv-00058-SLG). See also Docket 177-3 at ¶ 8 (Case
No. 3:23-cv-00058-SLG) (“I have already used the short section of new road built from GMT-2
to harvest caribou. It only just opened this fall, but I went to the end of the road and found a herd
out there. I harvested three caribou from that herd.”); Docket 177-4 at ¶ 10 (Case No. 3:23-cv-
00058-SLG) (“[T]he new road . . . is being heavily used every day by people from the village.”).
61 Docket 177-2 at ¶¶ 2, 7 (Case No. 3:23-cv-00058-SLG).
62 Docket 177-2 at ¶ 19 (Case No. 3:23-cv-00058-SLG).
63 Docket 177-4 at ¶ 13 (Case No. 3:23-cv-00058-SLG).
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ConocoPhillips’ proposed winter construction activities. Ms. Maupin is concerned
about noise pollution from Willow and air pollution from vehicle activity.64 However,
she lives in Fairbanks, not in the area around Willow, so it is not likely that she will
face immediate irreparable injury due to noise or air pollution caused by the 2023-
2024 proposed winter construction.65 	Dr. Ahtuangaruak avers that, “[t]his winter,
we heard the blasting at the new mine for Willow” and residents “could hear and
feel it in the village, shaking the houses.”66 But ConocoPhillips provided evidence
that, on the whole, noise and vibrations from gravel mining last winter season was
imperceptible or nearly imperceptible to Nuiqsut’s residents.67 	And while BLM
predicted that “[b]lasting would be very annoying near the source and intrusive to
conversation in Nuiqsut,” it also found that “these noise events would be very short-
lived and instantaneous.”68 On the whole, Plaintiffs have not established that noise
from blasting constitutes an irreparable injury that warrants an injunction pending
64 Docket 169-9 at ¶¶ 21-22 (Case No. 3:23-cv-00058-SLG).
65 Docket 169-9 at ¶ 5 (Case No. 3:23-cv-00058-SLG).
66 Docket 190-2 at ¶ 24 (Case No. 3:23-cv-00061-SLG).
67 Docket 177-2 at ¶ 13 (Case No. 3:23-cv-00058-SLG) (“Although the company conducted
significant blasting last winter, I did not hear anything in Nuiqsut”); Docket 177-8 at ¶ 10 (Case
No. 3:23-cv-00058-SLG) (“From the Spur road outside of Nuiqsut, you could see the mine blasts
in the distance, but you could not hear them. And I did not hear any blasts at all in Nuiqsut.”);
Docket 177-9 at ¶ 8 (Case No. 3:23-cv-00058-SLG) (“Most times from the village, you could not
hear or feel the blasts at all. There were a few times when I felt a slight vibration, but it was
minor.”).
68 AR820825.
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appeal. 	Mr. Kunaknana also avers that “[d]uring winter exploration when the ice
road is under construction and when the gravel is being hauled, we see yellow
snow on both sides of the ice road from the heavy equipment and machinery
operating 24/7 for the delivery of the gravel to the development sites.”69 	But it is
unclear what irreparable harm, if any, is caused by the discoloration of the snow
along the gravel roads.70
Finally, Plaintiffs have filed several declarations that they contend show that
their members will suffer injury to their use and enjoyment of the land due to the
2023-2024 winter construction activities.71 	Daniel Ritzman states that Willow
development will deter him from visiting the TLSA in the future72 and Josh Oboler
has a trip planned to the TLSA and the Pik Sand Dunes this upcoming summer.73
But, as noted, no construction in the TLSA is planned before January 2025, and
69 Docket 169-8 at ¶ 14 (Case No. 3:23-cv-00058-SLG).
70 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”). Similarly, Elisabeth Dabney’s claim
that “[g]ravel mining and road construction will fill wetlands that provide habitat for the birds our
members seek out in the Reserve,” does not identify harm to birds nor tie any such harm to
birds to an injury to a member’s interest in viewing those birds. Docket 169-2 at ¶ 23 (Case No.
3:23-cv-00058-SLG).
71 Docket 190 at 11-12 (Case No. 3:23-cv-00061-SLG).
72 Docket 169-5 at ¶ 36 (Case No. 3:23-cv-00058-SLG).
73 Docket 190-4 at 5 and ¶ 10 (Case No. 3:23-cv-00061-SLG).
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the closest Willow construction to the Pik Sand Dunes is 24.9 miles away.74 	Mr.
Ritzman also intends to float down the Colville River to Nuiqsut next summer and
he has unspecified plans to explore the Ublutuoch River and surrounding areas in
the summer.75 But the gravel mine near the Ublutuoch River is already open and
is 500 feet from the river and most construction occurs in the winter.76
Dr. Ahtuangaruak states that she “like[s] to travel along the GMT-2 road,
from Nuiqsut to the end, not to hunt but to get out any enjoy nature and try to
relax.”77 	She asserts that the “permanent infrastructure that will be constructed
over the next two years, including the roads, pipelines, well pads, and operations
center, will destroy the peace and beauty that currently exists beyond the end of
the road.”78 	Even if Dr. Ahtuangaruak’s interest in the “peace and beauty” that
presently exists past the end of the current road would be harmed by this winter’s
planned construction activities, it is unclear whether this type of intangible injury
would constitute an irreparable injury sufficient to warrant an injunction pending
74 Docket 177-13 at ¶ 23 (Case No. 3:23-cv-00058-SLG).
75 Docket 169-5 at ¶ 34 (Case No. 3:23-cv-00058-SLG).
76 Docket 169-5 at ¶ 34 (Case No. 3:23-cv-00058-SLG); Sovereign Iñupiat for a Living Arctic,
2023 WL 2759864, at *10.
77 Docket 190-2 at ¶ 23 (Case No. 3:23-cv-00061-SLG).
78 Docket 190-2 at ¶ 23 (Case No. 3:23-cv-00061-SLG).
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appeal.79 	In any event, Plaintiffs fail to establish the other Winter factors and
therefore an injunction pending appeal is not warranted.
III. 	Balance of the Equities and the Public Interest
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.80 	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.”81 	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
“such injury is sufficiently likely.”82 However, the law does not “allow us to abandon
a balance of harms analysis just because a potential environmental injury is at
issue,”83 and “[e]conomic harm may indeed be a factor in considering the balance
79 See All. For Wild Rockies, 632 F. 3d at 1135.
80 Drakes Bay Oyster Co., 747 F.3d at 1092 (citing Nken, 556 U.S. at 435).
81 Amoco Prod. Co., 480 U.S. at 542.
82 Id. at 545.
83 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” denying a preliminary injunction halting
project construction.).
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of equitable interests.”84 	The Court therefore must balance the environmental and
subsistence harms that have been asserted if the 2023-2024 winter construction
activities proceed against the economic and other harms that would occur if those
activities are enjoined while the merits of this case are on appeal.
The same interests persist at this stage of the litigation than were present
when Plaintiffs sough a preliminary injunction earlier this year.85 	SILA Plaintiffs
argue that the environmental and subsistence harms to their members outweigh
“[a]ny 	economic 	benefits 	to 	the 	government 	or 	permittees” 	and 	that 	any
employment opportunities for Nuiqsut residents and others would simply be
deferred to the future if ConocoPhillips 	is permitted 	to resume construction
activities after resolution of Plaintiffs’ appeals.86 	Similarly, CBD Plaintiffs assert
that 	“[c]onstruction 	activities 	during 	the 	pendency 	of 	this 	appeal 	will 	cause
irreparable environmental and subsistence injuries to Plaintiffs’ members,” while
an “injunction pending appeal, by contrast, will primarily harm Defendants by
postponing 	the 	[Willow] 	Project’s 	economic 	benefits 	for 	the 	duration 	of 	the
84 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”)).
85 See Sovereign Iñupiat for a Living Arctic, 2023 WL 2759864, at *12-15.
86 Docket 169 at 17 (Case No. 3:23-cv-00058-SLG).
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appeal.”87
On 	the 	other 	hand, 	Kuukpik 	emphasizes 	that 	39 	percent 	of 	Nuiqsut
households live below the poverty line88 and notes that if construction is halted by
an injunction, the corporation will be unable to provide jobs to 12 local subsistence
representatives and its subsidiary would be unable to hire 25 additional Nuiqsut
residents this winter.89 Further, Kuukpik argues that halting construction activities
pending appeal would prevent the construction of subsistence ramps and gravel
roads that most subsistence hunters and fishers view as highly beneficial to these
activities.90 ASRC would also face economic harm if winter construction activities
are 	enjoined, 	in 	part 	because 	ASRC’s 	subsidiary 	“estimates 	a 	loss 	of
approximately 349 jobs over the next few months, and $59 million in revenue.”91
NSB claims that it will lose revenue if winter construction activities are halted and
noted that the “North Slope Borough Assembly[,] . . . in 2021, voted unanimously
(with 	one 	abstention) 	to 	approve 	the 	rezoning 	of 	lands 	to 	allow 	Willow’s
87 Docket 190 at 13 (Case No. 3:23-cv-00061-SLG).
88 Docket 180 at 22 (Case No. 3:23-cv-00058-SLG) (citing AR821013).
89 Docket 180 at 23 (Case No. 3:23-cv-00058-SLG) (citing Dockets 180-3 at ¶ 16 and 180-5 at ¶
5 (Case No. 3:23-cv-00058-SLG)).
90 Docket 180 at 25-27 (Case No. 3:23-cv-00058-SLG).
91 Docket 181 at 21 (Case No. 3:23-cv-00058-SLG) (citing Docket 181-1 at ¶¶ 31, 35 (Case No.
3:23-cv-00058-SLG)).
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construction to begin.”92 	The State offers that the postponement of Willow
development will imperil future public permitting and planning required for Willow
and 	employment 	and 	training 	opportunities 	for 	North 	Slope 	residents.93
ConocoPhillips asserts that an injunction would jeopardize the future of the Project
and the employment of 1,800 workers set to be engaged on Willow this winter.94
In Amoco Production Co. v. Village of Gambell, the Supreme Court observed
that subsistence uses are not “always more important than development of energy
resources, or other uses of federal lands.”95 	In that case, the plaintiffs sought a
preliminary injunction against an oil and gas lease sale that they alleged would
interfere with their aboriginal hunting and fishing rights.96 	The district court held
that, while the plaintiffs “had established a strong likelihood of success on the
merits,” injunctive relief was inappropriate because “the balance of irreparable
harm did not favor [them,] . . . the public interest favored continued oil exploration,”
92 Docket 182 at 17, 14 (Case No. 3:23-cv-00058-SLG) (citing Docket 182-1 at ¶¶ 25-26 (Case
No. 3:23-cv-00058-SLG)).
93 Docket 184 at 13-14 (Case No. 3:23-cv-00058-SLG) (citing Docket 184-1 at ¶¶ 2-4) (Case
No. 3:23-cv-00058-SLG).
94 Docket 177 at 43-47 (Case No. 3:23-cv-00058-SLG). Through November 2023,
ConocoPhillips states that it has invested $1.1 billion in the Willow Project, and, during the
2023-2024 winter construction season, ConocoPhillips anticipates spending an additional $750
million. Docket 177-11 at ¶ 13 (Case No. 3:23-cv-00058-SLG).
95 Amoco Prod. Co., 480 U.S. at 545-46.
96 Id. at 535.
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and such exploration would “not significantly restrict subsistence resources.”97
The Supreme Court agreed with the district court’s analysis and held that “injury to
subsistence resources from [oil and gas] exploration was not at all probable” in that
case.98 	And it noted that “on the other side of the balance of harms was the fact
that the oil company . . . had committed approximately $70 million to exploration .
. . which they would have lost without chance of recovery had exploration been
enjoined.”99
Here, 	Plaintiffs 	have 	not 	persuasively 	demonstrated 	that 	injury 	to
subsistence resources from Willow’s 2023-2024 winter construction activities is
probable, especially in light of the competing perspectives of subsistence hunters
in Nuiqsut. Amoco suggests that the economic harms, particularly to the residents
of Nuiqsut and elsewhere on the North Slope, if 2023-2024 winter construction
activities are enjoined, outweigh any potential harm to subsistence hunters that
this winter’s construction activities may cause.100
The Court also finds that, while the environmental harm that would be
97 Id. at 539-40.
98 Id. at 545.
99 Id.
100 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”).
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caused by 2023-2024 winter construction activities is of legitimate concern to
Plaintiffs, only a small area of the Reserve will be impacted: No construction will
occur in the TLSA during the 2023-2024 winter construction season; 7.6 acres of
the Colville River Special Area will be disturbed during construction (0.00031
percent of that special area); and 204.1 acres of land will be disturbed in the
Reserve (0.000879 percent of the Reserve).101
As for “[t]he public interest inquiry,” it “primarily addresses impact on non-
parties rather than parties.”102 	“This is particularly the case where ‘the impact of
an injunction reaches beyond the parties, carrying with it a potential for public
consequences.’”103 	An injunction pending appeal 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.”104 	Alaska's 	elected 	federal 	lawmakers 	also 	expressed 	unanimous
101 Docket 177-12 at ¶¶ 13-14 (Case No. 3:23-cv-00058-SLG).
102 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)).
103 Id. (quoting Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009)).
104 Docket 53-6 at 4 (Case No. 3:23-cv-00058-SLG) (House Joint Resolution No. 6).
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support of the Willow Project at that time.105 	And in an amicus brief recently filed
by the Alaska Congressional Delegation and Alaska State Legislature, they assert
that “granting injunctive relief will cause immediate harm to Alaska’s economy” and
“[t]he construction at issue here is more extensive and integral to the Project,
making the potential harm to many Alaskans’ livelihoods even greater.”106 	And
they argue that “energy development in the [Reserve] strengthens national security
and decreases dependence on foreign energy.”107
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].”108 The Ninth 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.”109 In light of the foregoing, the Court
105 Docket 49-1 (Case No. 3:23-cv-00058-SLG).
106 Docket 183-1 at 6 (Case No. 3:23-cv-00058-SLG).
107 Docket 183-1 at 7 (Case No. 3:23-cv-00058-SLG).
108 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)).
109 Golden Gate Rest. Ass'n v. City & County of San Francisco, 512 F.3d 1112, 1126-27 (9th
Cir. 2008).
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gives 	considerable 	weight 	to 	the 	conclusions 	of 	the 	Alaska 	Congressional
Delegation and the Alaska State Legislature that an injunction halting 2023-2024
winter construction activities pending appeal is not in the public interest.
Moreover, allowing the 2023-2024 winter construction activities to proceed
would be consistent with the congressional directive in the NPRPA to the Secretary
of Interior to conduct “an expeditious program of competitive leasing of oil and gas
in the [Reserve].”110 Considering that last year’s gravel road has already aided in
the 	successful 	harvesting 	of 	caribou 	by 	many 	subsistence 	hunters, 	the
construction of subsistence ramps and additional miles of gravel road, in addition
to the employment opportunities Willow will afford, would help ensure an “adequate
opportunity for satisfaction of the economic and social needs of the State of Alaska
and its people,” which is a stated purpose of ANILCA.111 The Court concludes that
the strong legislative support at both the state and federal levels to proceed with
the 2023-2024 winter construction activities tips strongly against the issuance of
an injunction pending appeal.112
110 Pub. L. No. 96-514, 94 Stat. 2964 (1980) (codified at 42 U.S.C. § 6506a).
111 16 U.S.C. § 3101(d).
112 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 Injunction Pending Appeal
Page 27 of 27
In sum, the Court has weighed the environmental and subsistence harms
identified by Plaintiffs against the economic impact, benefits to most subsistence
users, and the state and federal legislative pronouncements of the public interest,
if the proposed Willow 2023-2024 winter construction activities proceed, and
concludes that the balance of the equities and the public interest tip sharply against
injunctive relief pending appeal.
IV. 	Conclusion
Plaintiffs have failed to satisfy the Winter factors.113 	Accordingly, SILA
Plaintiffs’ Motion for Injunction Pending Appeal at Docket 169 (Case No. 3:23-cv-
00058-SLG) and CBD Plaintiffs’ Rule 62(d) Motion for Injunction Pending Appeal
at Docket 190 (Case No. 3:23-cv-00061-SLG) are DENIED.
DATED this 1st day of December, 2023, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
113 Because the Court finds that Plaintiffs have not raised a serious question going to the merits,
the Court denies CBD Plaintiffs’ request to issue a short-term injunction while Plaintiffs seek
emergency relief from the Ninth Circuit. Cf. Sovereign Iñupiat for a Living Arctic v. BLM, Case
No. 3:20-cv-00290-SLG, 2021 WL 454280, at *4 (D. Alaska Feb. 6, 2021) (granting limited
injunction where legal issue was one of first impression). Moreover, 2023-2024 surface-
disturbing winter construction will begin “no sooner than December 21, 2023,” providing
sufficient time for Plaintiffs to seek emergency relief in the Ninth Circuit. Docket 177 at 49
(Case No. 3:23-cv-00058-SLG); Docket 177-11 at ¶ 7 (Case No. 3:23-cv-00058-SLG).
Case 3:23-cv-00061-SLG Document 208 Filed 12/01/23 Page 27 of 27