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No Oilport! v. Carter

Citation: 12 ELR 20140
No. Nos. C80-360 M, -369 M, 520 F. Supp. 334/18 ERC 1381/(W.D. Wash., 02/05/1981)

The court rules that the President's choice of a Northern Tier Pipeline route to transport Alaskan crude oil from the West Coast to the Midwest and the Interior Department's granting of right-of-way permits dis not violate the Publics Utility Regulatory Policies Act (PURPA), the National Environmental Policy Act (NEPA), the Mineral Leasing Act (MLA), or other rederal requirements, but that an evidentiary hearing is necessary to examine alleged violations of Indian treaty rights. Initially, the court denies motions to strike certain documents, holding that evidence outside the administrative record is admissible on the issue of the adequacy of an environmental impact statement (EIS) and that an affidavit of a presidential advisor is admissible as an explanatory supplement to the President's decision. Under PURPA the court holds that the substance of the President's decision is not reviewable since it is based in part on national security and foreign policy considerations that are beyond the purview of the judiciary. The court finds plaintiffs' procedural challenges, relating to circulation of federal and state agency comments, forwarding of comments to the President, and the opportunity for public comment, to be uniformly without merit. Under NEPA, the court rejects challenges to the adequacy of the project's EIS. The failure of the draft EIS to reflect a late change in the pipeline route was a harmless deficiency since the alternative was discussed in the draft EIS and comment on the final EIS was allowed. The EIS adequately analyzed the impacts of the project on Puget Sound, on the Port Angeles-Clallum County area, on Indian tribes indigenous to the pipeline route, and on streams and rivers crossed by the pipeline. In addition, no EIS is needed for a spur pipeline to connect with Puget Sound area refineries until a specific proposal for the spur is made. Alternatives to the Northern Tier project, including the "no action" alternative and a delay in the project, as well as alternative routes across Puget Sound, were adequately considered in the project's EIS. Under §§ 28(a) and 28(b)(1) of the MLA, federal lands in which Indians have only a right of access to fishing sites are not "lands held in trust" for Indians and can be subjected to right-of-way permits granted by the Secretary of the Interior. In addition, the Secretary is empowered by § 28(c)(2) to grant rights-of-way over federal lands administered by other agencies. He imposed adequate safety and environmental stipulations on the project and otherwise complied with § 28. Under § 7(c) and (d) of the Endangered Species Act (ESA), completion of a biological assessment prior to the granting of the right-of-way permit was not required since the permit provides that no notice to proceed with construction will be issued until the ESA is fully complied with. Nor does the project violate the Magnuson Amendment to the Marine Mammal Protection Act, which prohibits the granting of federal permits for oil handling facilities located on or affecting waters of Puget Sound east of Port Angeles. Although the plaintiff Indian tribes may challenge defendants' compliance with Executive Order 11988, "Floodplain Management," the Secretary adequately considered the impact of the project on floodplains. The Northern Tier Pipeline Commission's failure to certify consistency of the project with the State of Washington's Coastal Zone Management Program, as required by § 307(a)(3)(A) of the Coastal Zone Management Act, was harmless error since the state will have a separate opportunity to determine consistency in a proceeding before its Energy Facility Site Evaluation Council. The court rules that the City of Port Angeles may not obtain an injunction based on a breach of lease caused by the right-of-way grant, since the federal government has not waived its sovereign immunity from suits for injunctive relief based on contract. Finally, the court orders the holding of an evidentiary hearing concerning whether the project would degrade fish habitat in violation of Indian treaty rights. On all other issues, the court grants defendants' motions for summary judgment.

Counsel for Plaintiffs
Craig A. Ritchie
Doherty, Doherty & Ritchie
212 E. 5th St., Port Angeles WA 98362
(206) 452-2391

Craig L. Miller, City Attorney
107 North Oak, P.O. Box 1150, Port Angeles WA 98362
(206) 457-0411

Russell W. Busch
Evergreen Legal Services, Native American Project
520 Smith Tower, 506 2nd Ave., Seattle WA 98104
(206) 464-5911

Counsel for Defendants
John C. Merkel, U.S. Attorney; David E. Wilson, Ass't U.S. Attorney
Rm. 1012, U.S. Cthse., 1010 5th Ave., Seattle WA 98104
(206) 442-7970

Lois J. Schiffer, Andrew F. Walsh, Nancy B. Firestone
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2704

Robert H. Loeffler, Alan Cope Johnston, Steven S. Rosenthal
Morrison & Foerster
1025 Connecticut Ave. NW, Suite 807, Washington DC 20036
(202) 466-6060