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Tribal Village of Akutan v. Hodel

Citation: 19 ELR 20071
No. Nos. 88-3610 et al., 859 F.2d 651/(9th Cir., 10/05/1988) After remand from U.S. Supreme Court & subsequent district court decision

The court holds that the Secretary of the Interior's decision to conduct an outer continental shelf lease sale in Bristol Bay, Alaska, complied with the Outer Continental Shelf Lands Act (OCSLA), the National Environmental Policy Act (NEPA), and the Endangered Species Act (ESA). The court first holds that the Secretary's rejection of the Governor of Alaska's recommendations under OCSLA § 19 to delay and limit the sale was not arbitrary or capricious. The Secretary complied with OCSLA § 19(c) by adequately balancing the nation's interest in developing oil and gas against its policy of protecting the environment. The Secretary also duly considered the governor's recommendations and relied on rational expert assessments of the economic value and oil spill risks of the lease sale. The governor had a fair opportunity to comment on the original lease sale proposal, and the Secretary did not have to resubmit the proposal to the governor after making minor revisions in its economic calculations.

The court next holds that the Secretary's environmental impact statement (EIS) was adequate. NEPA requires less information on oil spill risks at the lease sale stage of OCSLA than at the later exploration and development stages. Additional information and EISs will be available at those later stages, and the Secretary can then alter development plans as necessary. Errors at the lease sale stage are also unlikely to damage the environment. The court declines to consider whether the Secretary's oil spill risk analysis was methodologically flawed, because NEPA does not require use of the best available methodology. The court also holds that the EIS gives the public sufficient information on oil spill risks although it does not disclose all the assumptions underlying its methodology.

The court next holds that the Secretary's refusal to take the alternative actions suggested in a biological opinion issued by the National Marine Fisheries Service (NMFS) to protect gray whales was not arbitrary or capricious. The Secretary satisfied ESA § 7(a)(2) by taking alternative, reasonably adequate steps to insure the continued existence of gray whales. The lease sale itself would not jeopardize the whales, and the refusal of NMFS's recommendations was reasonable. That refusal did not create a risk of oil spills at later stages, because the Secretary will have to comply with the ESA at those stages as well. Finally, the court holds that the failure of the NMFS's biological opinion formally to specify the impact of incidental takings of endangered whales did not violate ESA § 7(b)(4) because it was not arbitrary and capricious. The opinion did effectively consider that impact and the NMFS reasonably concluded that it need not expressly analyze the impacts of takings prohibited by the ESA and the Marine Mammal Protection Act. [19 ELR 20072] [Related opinions are published at 16 ELR 20245, 20740.]

Counsel for Plaintiffs-Appellants
Carol H. Daniel
Alaska Legal Services Corporation
550 W. Eighth Ave., Ste. 200, Anchorage AK 99501
(907) 272-9431

Counsel for Defendants-Appellees
Jacques B. Gelin
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2762

Before Tang and Thompson, JJ.