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Kunaknana v. Clark

ELR Citation: 14 ELR 20827
Nos. Nos. 83-4325, 84-3623, 742 F.2d 1145/21 ERC 1699/(9th Cir., 09/12/1984)

The court rules that the Bureau of Land Management (BLM) oil and gas lease sale in the National Petroleum Reserve-Alaska did not violate the subsistence lifestyle provisions of the Alaska National Interest Lands Conservation Act (ANILCA). The court first holds that plaintiffs, two Inupiat Eskimos who follow a subsistence lifestyle, have standing to challenge compliance with portions of ANILCA designed to protect subsistence resources. They are not barred from suit for failure to participate in the administrative proceeding that led to the lease sale.

The court sustains BLM's presentation at trial of a modified record of decision (MROD) that concluded that subsistence resources would not be significantly restricted by the sale. Although post hoc rationalizations are usually excluded from judicial review, a recognized exception applies to the MROD, without whose formal explanation of agency action no meaningful judicial review could have taken place.

The court then holds that BLM complied with the procedural requirements of ANILCA §810(a), which deals with decisions affecting subsistence living. When read in concert with statutory directives to develop the oil and gas fields in question, §810 gives BLM discretion to choose which tracts to lease but not discretion to lease no tracts. The court construes §810 to require a public hearing on subsistence only if BLM finds that the leasing will significantly affect subsistence uses. The MROD finding of no significant restriction was not arbitrary or capricious. The agency's definition of "significant restriction," though narrower than the analogous definition of significance under the National Environmental Policy Act, is reasonable.

Finally, the court holds that plaintiffs were not unreasonably restricted in presenting their case. The district court's exclusion of expert testimony outside the record, curtailment of discovery, and grant of summary judgment were all proper.

Counsel for Appellants
Donald Cooper, G. Thomas Koester, Sarah E. McCracken, Ass't Attorneys General
420 L St., Suite 100, Anchorage AK 99501
(907) 276-3550

Counsel for Appellees
Fred R. Disheroon
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-7361

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

Counsel for Amici Curiae
Sanford Sagalkin
North Slope Borough
1101 17th St. NW, Suite 808, Washington DC 20036
(202) 296-2214

Before ANDERSON, SKOPIL, and POOLE, Circuit Judges.