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North Slope Borough v. Andrus

Citation: 10 ELR 20832
No. Nos. 80-1148 et al., 642 F.2d 589/15 ERC 1633/(D.C. Cir., 10/09/1980) Rev'd

The court allows the Secretary of the Interior to proceed with the "lease phase" of an outer continental shelf (OCS) oil and gas project in the Beaufort Sea because of compliance with the Outer Continental Shelf Lands Act (OCSLA), the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the marine Mammal Protection Act (MMPA) and reverses the district court's issuance of an injunction against the sale of the leases, 10 ELR 20115. Applying the "rule of reason" standard of review, the court holds that the environmental impact statement (EIS) complied with NEPA because it included an adequate analysis of the cumulative impacts of the lease sale on the Beaufort Sea, and it contained an adequate discussion of alternative energy sources, lease stipulations, and management schemes. The court finds that the highly restrictive nature of the stipulations added to the leases and discussed in the EIS obviates the need for the consideration of other stipulations. The court notes, furthermore, that the Secretary did in fact consider alternative lease stipulations in a Secretarial Issue Document placed in the administrative record. The court also finds that the Secretary adequately considered alternative management schemes for the leasing area since (1) the EIS directly referred to a management scheme for the Beaufort Sea under the Marine Sanctuaries Act, and (2) the Beaufort Sea was never an active candidate for designation as a marine sanctuary by the Department of Commerce. Finally, the court affirms the district court's holding that the worst-case analysis in the EIS reasonably alerted the Secretary to the uncertainty of the environmental effects of the project. The court next rules that while under the ESA the "agency action" at issue is the entire oil development project, the statutory mandate should be viewed in light of the graduated, stage-by-stage approach of the OCSLA. The ESA's requirements have been met since (1) a letter to the Director of the Bureau of Land Management from the National Marine Fisheries Service constituted a "biological opinion" satisfying § 7(b), and (2) the preliminary activities authorized in conjunction with the lease sale entail no irreversible or irretrievable commitment of resources which would jeopardize the continued existence of Bowhead whales in violation of § 7(d). The court next holds that the federal government owes a limited trust responsibility to the Inupiat Eskimos to protect their rights of subsistence hunting which it has fulfilled in this case by complying with relevant environmental statutes and by specifically considering in the EIS the special needs of the Inupiats. The court also finds that the Secretary has complied with the OCSLA by preparing certain studies and requiring continuing compliance with § 21 of the Act concerning the use of best available and safest technology (BAST). In conclusion the court rules that the final resolution of the responsibility for certain state-managed tracts must await a pending decision by the Supreme Court concerning § 7's application to state-owned submerged lands, but the court nonetheless lifts an injunction against preliminary activities in these tracts.

Counsel for Appellees
Bruce J. Terris, Edward A. Comer, James M. Hecker
1526 18th St. NW, Washington DC 20036
(202) 332-1882

Clifton E. Curtis, James N. Barnes, Leonard C. Meeker, Michael I. Jeffery, Donald E. Clocksin
Center for Law and Social Policy
1751 N St. NW, Washington DC 20036
(202) 872-0670

Patrick A. Parenteau, Thomas G. Tomasello
National Wildlife Federation
1412 16th St. NW, Washington DC 20036
(202) 797-6800

Counsel for Appellants
Kathryn A. Oberly; James W. Moorman, Ass't Attorney General; Lois J. Schiffer, Bruce C. Rashkow, Margaret Strand
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2756

Counsel for Intervenors-Appellants
E. Edward Bruce, John T. Smith II, Constance J. Chatwood, David K. Flynn
Covington & Burling
888 16th St. NW, Washington DC 20006
(202) 452-6000

Counsel for Amicus Curiae
Avrum M. Gross, Attorney General; Robert M. Maynard, Ass't Attorney General
Pouch K, State Capitol, Juneau AK 99811
(907) 465-3600

Owen Olpin, Burton H. Thomson
O'Melveny & Myers
Suite 3800, 611 W. 6th St., Los Angeles CA 90067
(213) 620-1120

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

Before: MacKINNON and WILKEY, Circuit Judges, and PENN*, United States District Judge for the United States District Court for the District of Columbia.