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Kaktovik, Village of v. Corps of Eng'rs

Citation: 9 ELR 20117
No. No. A-78-305, 12 ERC 1740/(D. Alaska, 12/29/1978)

The court denies plaintiffs' motion for a preliminary injunction to prevent Exxon Corp. from drilling an exploratory oil well on a man-made gravel pad in the Beaufort Sea less than one mile from the Alaska coast. Plaintiffs claimthat the Coprs of Engineers permit for construction of the gravel pad under § 404 of the Federal Water Pollution Control Act (FWPCA) was improperly issued because of a lack of proper public notice, that the negative determination regarding preparation of an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA) was improper, that the state certification required under § 401 of the FWPCA was not obtained, and that the Corps failed to engage in formal interagency consultation as required under the Endangered Species Act (ESA). Notwithstanding plaintiffs' failure to conform to the 60-day notice requirement before filing suit under the ESA and the FWPCA, the court decides that because they are "in substantial compliance" it has jurisdiction to hear the case. The court also concludes that the plaintiff villages and the City of Barrow have standing to sue to enforce their right under NEPA to participate in the EIS review process. further, the suit is not barred by laches since defendants have not established a lack of diligence on the part of plaintiffs. In determining whether to issue the preliminary injunction, the court first looks at the plaintiffs' likelihood of success on the merits. With respect to the claims under the Endangered Species Act, the court concludes that there was sufficient consultation with the National Marine Fisheries Service to satisfy the requirements of § 7 of the Act and that the possibility of harm to bowhead whales was too speculative to support a strong likelihood of success under §§ 7 and 9 of the ESA. Regarding the Corps' determination not to prepare an EIS, the court looks past the environmental assessment to examine the entire record. Noting that plaintiffs have raised serious questions regarding whether an EIS was required for this permit, whether an EIS should have been prepared on the cumulative impacts of all oil exploration in the area, and whether defendants have taken the requisite "hard look" at the environmental consequences of this action, the court nonetheless concludes that preliminary relief would be inappropriate because they have failed to show that the balance of hardships tips in their favor. The court further concludes that a separate EIS on production activity is unnecessary until a production plan is proposed for agency approval because the exploration and production phases are sufficiently independent to be considered separately in the agency review process. The public notice provided by the Corps after the permit applications were filed was sufficient notwithstanding the failure of the notice to announce that state certification of water quality would be required. Since the state has waived such certification under § 401 of the FWPCA, preliminary relief is not appropriate on the claim that defendants illegally failed to request or obtain such approval. Finally, the court concludes that with respect to all issues raised the balance of equities favors defendants in light of the fact that possible environmental damage will be minimized by the careful design of the exploratory well.

Counsel for Plaintiffs
Donald E. Clucksin, Michael I. Jeffrey
Alaska Legal Services Corp.
524 W. Sixth Ave., Suite 204, Anchorage AK 99501
(907) 272-9431

Clifton E. Curtis
Center for Law and Social Policy
1751 N. St. NW, Washington DC 20036
(202) 872-0670

Counsel for Defendants
Alexander O. Bryner, U.S. Attorney
P.O. Box 680, Anchorage AK 99510
(907) 277-1491

James W. Moorman, Ass't Attorney General; Bruce C. Rashkow, Lawrence R. Liebesman, Margaret Strand, Donald W. Stever, Jr., Cynthia Pickering
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Carl J. D. Bauman, Richard O. Gantz
Hughes, Thorsness, Gantz, Powell & Brundin
509 W. Third Ave., Anchorage AK 99501
(907) 274-7522