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Kunaknana v. United States Army Corps of Engineers

United States District Court, D. Alaska

March 12, 2014

SAM KUNAKNANA, et al., Plaintiffs,
UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants, and CONOCOPHILLIPS ALASKA, INC., et al., Intervenor-Defendants.


SHARON L. GLEASON, District Judge.

Before the Court at Docket 149 is a Motion for Temporary Restraining Order and Preliminary Injunction filed by Plaintiffs Sam Kunaknana et al. Oral argument was not requested by the parties and was not necessary to the Court's resolution of the motion. For the reasons discussed herein, the motion will be denied with respect to the current construction season, but without prejudice to Plaintiffs' right to request injunctive relief with respect to future construction seasons if the Court grants all or part of Plaintiffs' pending motion for summary judgment.


For purposes of this motion, the Court presents only a brief overview of the key facts of this case:

The Alpine oil field, located on Alaska's North Slope, was discovered in 1994.[1] In 1998, the U.S. Army Corps of Engineers ("the Corps") issued a permit to ARCO Alaska to construct the Alpine Central Processing Facility and two drill sites, CD-1 and CD-2.[2] In 2001, ARCO's successor, ConocoPhillips Alaska, Inc. ("CPAI"), announced the discovery of additional oil to the west of Alpine in the National Petroleum Reserve-Alaska ("NPRA").[3] Thereafter, the Bureau of Land Management ("BLM") initiated a review process pursuant to the National Environmental Policy Act ("NEPA") to assess the environmental impact of CPAI's proposal to develop five drill sites: CD-3 through CD-7.[4] That review process culminated with the publication of the final Alpine Satellites Environmental Impact Statement in 2004.[5]

In December 2011, following a lengthy administrative process, the Corps issued a Record of Decision ("2011 ROD") granting CPAI a permit under Section 404 of the Clean Water Act ("CWA") to fill 58.5 acres of wetlands in order to develop CD-5.[6] CD-5 is located on lands conveyed to Kuukpik Corporation within the NPRA.[7] A portion of the filling would occur on land within the Colville River Delta, [8] an area "recognized internationally for its biological diversity and richness" and "regionally for its importance to fish, wildlife, and subsistence resources."[9]

On February 27, 2013 Plaintiffs filed this lawsuit, [10] which challenges the Corps' issuance of the permit as violating the procedural requirements of NEPA, 42 U.S.C. §§ 4321-4327, and Section 404 of the CWA, 33 U.S.C. § 1344.[11] Plaintiffs are residents of Nuiqsut, an Inupiat Eskimo village located on the Nigliq Channel of the Colville River Delta, approximately 8.7 miles southwest of the CD-5 project area.[12] In the standing declarations submitted with their motion for summary judgment, Plaintiffs state that they conduct subsistence activities in the vicinity of the CD-5 project area.[13] They maintain that full compliance with the CWA and NEPA may result in a project "that will have less of an impact on the rich and productive subsistence areas [they] rely on near the CD-5 project."[14]

In the months following the filing of the Complaint, the Court permitted CPAI, the Arctic Slope Regional Corporation ("ASRC"), the State of Alaska, Kuukpik Corporation, and the North Slope Borough to join this action as Intervenor-Defendants in support of the Corps.[15]

On August 14, 2013, the Court issued an Order Establishing Joint Case Management and a Case Schedule for this case and the related case of Center for Biological Diversity v. U.S. Army Corps of Engineers, Case No. 3:13-cv-00095-SLG. The order set a deadline of August 30, 2013 for the Corps to file any augmentation of the administrative record.[16] The order also established a schedule for the parties to file summary judgment briefs.[17]

The Corps moved for an extension of time to augment the record.[18] Plaintiffs opposed, stating they had "hoped to fully litigate the case before [CPAI] begins construction in the first quarter of 2014, " but "[n]ow this goal is jeopardized and Plaintiffs will likely have to request a preliminary injunction."[19] The Court granted the Corps' motion and modified the summary judgment briefing schedule.[20] Pursuant to this modified schedule, the parties filed cross-motions for summary judgment.[21] These motions became ripe on January 3, 2014, and the Court has taken them under advisement.

On February 5, 2014, Plaintiffs filed the Motion for Temporary Restraining Order and Preliminary Injunction.[22] In an affidavit filed with the motion, Plaintiffs' counsel avers that on January 28, 2014, he received a telephone call from Plaintiff Martha Itta informing him that she had heard from the BLM that CPAI had begun construction on CD-5.[23] Plaintiffs' counsel contacted CPAI's counsel, who confirmed that CPAI had begun construction.[24] In their motion, Plaintiffs assert that CPAI's construction activities "pose a threat of irreparable harm to the environment, " and they request "a temporary restraining order and preliminary injunction to halt construction activities until the Court has issued an order on... Plaintiffs' motion for summary judgment."[25]

Pursuant to the parties' apparent stipulation and this Court's Order, [26] the Corps, CPAI, and the other Intervenor-Defendants responded to Plaintiffs' motion on February 21, 2014, [27] and Plaintiffs replied on February 28, 2014.[28]


I. ...

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