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State v. Jewell

United States District Court, D. Alaska

July 21, 2015

STATE OF ALASKA, Plaintiff,
v.
SALLY JEWELL, in her official capacity as the United States Secretary of the Interior; et al., Defendants, and GWICH'IN STEERING COMMITTEE, et al., Intervenor-Defendants.

MEMORANDUM DECISION AND ORDER

SHARON L. GLEASON, District Judge.

Introduction and Background

This is an action brought by the State of Alaska that seeks an order directing the Secretary of the Interior to review the State's submitted plan for the exploration of oil and gas resources within the coastal plain of the Arctic National Wildlife Refuge ("ANWR"). At issue is whether, pursuant to the Alaska National Interest Lands Conservation Act ("ANILCA"), [1] the Secretary has an ongoing obligation to evaluate and approve exploration plans submitted to her for approval as Plaintiff contends, or whether, as Defendants contend, that obligation expired in 1987.

ANWR is located in the northeast corner of Alaska. It was originally designated as a protected wildlife area in 1960.[2] In 1980, the passage of ANILCA established the present-day ANWR, which combines the original 8.9 million acre protected wildlife area with an additional 10 million acres of adjoining land. An approximately 1.5 million acre area within ANWR was designated as the "coastal plain, " an area sometimes referred to as the "Section 1002 Area" because of its designation in § 1002 of ANILCA.[3]

In the debates leading up to the passage of ANILCA, Congress was divided on whether the coastal plain should be opened to oil and gas exploration. As recounted in the Senate Committee report on the bill:

The Committee was particularly concerned with the ANWR. In hearings and in markup, conflicting and uncertain information was presented to the committee about the extent of oil and gas resources on the Range and the effect development and production of those resources would have on the wildlife inhabiting the Range and the Range itself.... The Committee was determined that a decision as to the development of the Range be made only with adequate information and the full participation of the Congress.[4]

Reflecting these concerns, ANILCA included provisions for a report to Congress that would provide "an analysis of the impacts of oil and gas exploration" on the coastal plain.[5]

In order to properly advise Congress, ANILCA set out a multi-step process to precede the report's submission to Congress. First, within eighteen months of December 2, 1980, the "Secretary, in consultation with the Governor of the State, Native Village and Regional Corporations, and the North Slope Borough within the study area and interested persons" was directed to "conduct a continuing study of the fish and wildlife (with special emphasis on caribou, wolves, wolverines, grizzly bears, migratory waterfowl, musk oxen, and polar bears) of the coastal plain and their habitat."[6] Second, within two years of December 2, 1980, the Secretary was directed to establish initial guidelines governing oil and gas exploratory activities that included "such prohibitions, restrictions, and conditions on the carrying out of exploratory activities as the Secretary deems necessary or appropriate to ensure that exploratory activities do not significantly adversely affect the fish and wildlife, their habitats, or the environment."[7] ANILCA limited these exploratory activities to "surface geological exploration or seismic exploration, or both, for oil and gas within the coastal plain;" exploratory activities as defined in § 1002 did not include exploratory drilling.[8] The third step of the process, after the initial guidelines were completed, provided that

any person including the United States Geological Survey may submit one or more plans for exploratory activity (hereinafter in this section referred to as "exploration plans") to the Secretary for approval. An exploration plan must set forth such information as the Secretary may require in order to determine whether the plan is consistent with the guidelines....
The Secretary shall determine, within one hundred and twenty days after any plan is submitted for approval, if the plan is consistent with the guidelines established under subsection (d) of this section. If the Secretary determines that the plan is so consistent, he shall approve the plan: except that no plan shall be approved during the two-year period following December 2, 1980.... The Secretary shall not approve of any plan submitted by the United States Geological Survey unless he determines that (1) no other person has submitted a plan for the area involved which meets established guidelines and (2) the information which would be obtained is needed to make an adequate report under subsection (h).[9]

In short, the Secretary was required to review any exploratory plan submitted within 120 days and approve the plan if it met the guidelines the Secretary had established. Pursuant to this statutory plan, exploratory activities occurred within the coastal plain from 1983 through 1985.[10]

ANILCA required the Secretary to submit a report to Congress "[n]ot earlier than five years after December 2, 1980, and not later than five years and nine months after such date." The report was to contain all of the following information:

(1) the identification by means other than drilling of exploratory wells of those areas within the coastal plain that have oil and gas production potential and estimate of the volume of the oil and gas concerned;
(2) the description of the fish and wildlife, their habitats, and other resources that are within the areas ...

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