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North Slope Borough v. Hammond

Citation: 10 ELR 20538
No. No. 2 BA-79-57, (Alaska Super. Ct., 06/12/1980)

An Alaska state court enjoins entry onto stateand federal submerged land lying off the coast of Alaska in the Beaufort Sea that was leased to private companies for oil and gas development in December 1979. The injunction against further exploratory activity is issued pending specification by the Alaska Commissioner of Natural Resources (Commissioner) of his findings concerning the impact of the lease sale on the subsistence lifestyle of the Inupiat Eskimos and his determination, in light of such data, of whether the lease sale is in the best interest of the state, as required by the Alaska Public Lands Act (APLA). The decision is rendered on cross-motions for summary judgment in a suit filed by North Slope native villages and representatives against state officials who had approved the lease sale of a total of 513,000 acres of submerged land lying adjacent to fields presently being developed in Prudhoe Bay. The oil companies that had successfully bid on the tracts intervened as defendants. Basing their claims on the Endangered Species Act (ESA), the Marine Mammal Protection Act (MMPA), and the Migratory Bird Treaty Act (MBTA), in addition to several state statutes, plaintiffs contended that the lease sale and related activities would have a serious adverse impact on the Bowhead whale, and animal central to the Inupiat economic, social, and cultural life. Defendants responded that the lease restrictions and stipulations adequately mitigated the potential harm to wildlife.

Before considering the merits of plaintiffs' federal law claims, the court notes that it has jurisdiction to hear them since the statutes invoked give no indication that Congress intended claims arising under them to be resolved exclusively in federal court. However, plaintiffs are collaterally estopped from raising these issues since identical questions had been decided adversely to parties representing identical interests in North Slope Borough v. Andrus, 10 ELR 20115 (D.D.C. 1980). Nevertheless, the state court proceeds to conduct an independent review of the merits of claims under the ESA and the MMPA (the MBTA claim was not included in the motion for summary judgment). Though it finds that defendants are subject to the Acts, and that the species involved are covered by its provisions, the court refuses to grant injunctive relief since there has been no showing of imminent or certain harm to such animals sufficient to constitute a "taking" under either statute.

Ruling upon plaintiffs' state law claims, the court first rejects the contention that the Bowhead whale is protected under the Alaska Endangered Species Act (AESA) since it is included on the federal list of endangered species. The allegation that the AESA was violated with respect to the Alaska Curlew was waived when not raised during the administrative proceedings preceding the lease sale. Considering the merits of the claim nevertheless, the court finds no factual basis for the contention that the lease sale would affect the habitat of a bird last sighted in Alaska in 1900.

Considering the challenge raised under the Alaska Coastal Management Act to the sufficiency of the determination by the Commissioner that the lease sale was consistent with the Alaska Coastal Management Program, the court rejects the contentions that findings of consistency must be made in writing or on a case-by-case basis. All that is required is a record reflecting an adequate basis for the decision. Here the record shows that the Commissioner compared the lease sale with a more restrictive plan than the stateprogram and incorporated several additional lease stipulations as a result.

The court finds that there were violations of the Alaska Public Meetings Act by the Agency Advisory Committee on Leasing and the Joint Federal/State Beaufort Sea Task Force but dismisses them as harmless. Though both groups failed to provide reasonable public notice of their meetings, there was sufficient public input into the final decision made by the Commissioner to satisfy the statutory requirements.

Dismissing as without merit plaintiffs' claim that the Commissioner's Finding and Decision lacked any justification for the selection of particular bidding methods, the court concludes that the Alaska Public Lands Act dictates neither that the Commissioner make written findings nor that he conclude that a given bidding method is in the best interest of the state. Finding a reasonable basis for the procedures ultimately selected, the court upholds those utilized in the lease sale. The court agrees with plaintiffs, however, that in light of the special status given by the State of Alaska to native subsistence activities, the Commissioner did violate the APLA in failing to set forth his findings as to the cumulative impact of the sale and related activities on the lifestyle of the Inupiat Eskimos in justifying his decision that the lease sale itself was in the best interest of the state. The development of leased land is enjoined pending promulgation of his findings in this regard. Finally, the court rejects defendants' argument that the United States is an indispensable party to the suit.

The full text of this opinion is available from ELR (77 pp. $10.00, ELR Order No. C-1218).

Counsel for Plaintiffs
Bruce K. Terris, Philip G. Sunderland
1526 18th St. NW, Washington DC 20036
(202) 332-1882

Charles Cranston
Cranston, Walters, Dahl & Jarrell
310 K St., Suite 407, Anchorage AK 99501
(907) 276-1994

Conrad Bagne
North Slope Borough
P.O. Box 69, Barrow AK 99723
(907) 852-2611

Counsel for Plaintiff-Intervenors
Craig Tillery
Alaska Legal Services
736 G St., Anchorage AK 99501
(907) 272-9431

Michael I. Jeffrey
Alaska Legal Services
P.O. Box 309, Barrow AK 99723
(907) 852-2311

Counsel for Defendants
Michael Aruda, Ass't Attorney General
420 L St., Suite 100, Anchorage AK 99501
(907) 276-3550

Counsel for Defendant-Intervenors
Theodore E. Fleischer, Paul R. Destefano
Ely, Guess & Rudd
510 L. St., Suite 700, Anchorage AK 99501
(907) 276-5121

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

Hodges, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]