Wilderness Society v. Babbitt

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

______________________________
)
THE WILDERNESS SOCIETY, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 98-2395 (RWR)
)
1
KEN SALAZAR, Secretary of the )
Interior, et al., )
)
Defendants. )
______________________________ )

MEMORANDUM OPINION

The Wilderness Society and seven other organizations filed

this lawsuit against the Secretary of the Interior, the Bureau of

Land Management (“BLM”), and the Fish and Wildlife Service

(“FWS”) challenging the decision by the Secretary to conduct oil

and gas leasing in an area of the National Petroleum Reserve-

Alaska (“NPR-A”). Plaintiffs filed a motion for partial summary

judgment on Counts II through IV, VII and VIII of their first

amended complaint, arguing that the Environmental Impact

Statement violates the National Environmental Policy Act of 1970

(“NEPA”), 42 U.S.C. § 4331, et seq., Executive Order (“EO”)

11,990, and the Endangered Species Act of 1973 (“ESA”), 16 U.S.C.

§ 1531, et seq. Defendants filed a cross-motion for summary

judgment on these counts. Plaintiffs later filed a motion to

1
The current Secretary of the Interior, Ken Salazar, is
substituted as a defendant under Fed. R. Civ. P. 25(d).
 -2-

dismiss without prejudice for lack of jurisdiction Count VIII

involving the ESA claim, which the defendants oppose.2 Because

Count VIII is moot, it will be dismissed. Because the defendants

complied with NEPA and the EO, judgment will be entered for them

on the remaining counts.

BACKGROUND

I. HISTORY OF LEASING IN THE NPR-A

The NPR-A was first established in 1923 when President

Warren G. Harding set aside 23.5 million acres in northern Alaska

to be administered by the Navy as a future oil supply.3 (See

Pls.’ Stmt. of Material Facts ¶ 2; Defs.’ Stmt. of Material Facts

¶ 2.) Administration of the NPR-A was transferred from the

Secretary of the Navy to the Secretary of the Interior in 1976,

when President Gerald Ford signed the National Petroleum Reserves

Production Act in 1976 (“NPRPA”). See 42 U.S.C. § 6502. The

NPRPA prohibited production of petroleum or development leading

to such production in the NPR-A without prior authorization by

Congress. See 42 U.S.C. § 6504(a).

2
Defendants’ motion for partial summary judgment on Count I
was granted in open court on September 15, 2000. Counts V and VI
were voluntarily dismissed on August 28, 2001.
3
The NPR-A was one of four regions that had been
specifically designated by Congress as Naval Petroleum Reserves,
set aside for the specific purpose of ensuring a supply of oil in
case of a national emergency.
 -3-

Authorization for such production came in December 1980,

when Congress passed the appropriations bill for the fiscal year

ending September 30, 1981. See P.L. No. 96-514 (1980). The

rider was passed as part of an effort to combat the difficulties

caused by the energy crisis. See 126 Cong. Rec. S29489

(1980)(statement of Sen. Stevens) (“[W]e can no longer delay

efforts which would increase the domestic supply of oil and

lessen our reliance on imports.”); see also 126 Cong. Rec. H20533

(1980) (statement of Rep. McDade) (“We are in the middle of an

energy crisis.”). At the time, a federal drilling program was

already in place, but the government wanted to shift exploration

efforts to the private sector because the federal program was of

limited scope and was expensive to maintain. See S. Rep. No. 96-

985 at 34 (1980). To help combat the problem, Congress decided

to open up the NPR-A to private companies interested in oil and

gas leasing. See 126 Cong. Rec. 31,196 (1980)(statement of Sen.

Stevens) (“The conferees have agreed to include language to

expedite private leasing and exploration of the entire National

Petroleum Reserve in Alaska.”) (emphasis added).

When the appropriations bill for fiscal year 1981 was

passed, a rider was attached to it stating that the Secretary of

the Interior should carry out “an expeditious program” of oil and
 -4-

gas leasing in the NPR-A.4 See P.L. No. 96-514 (1980). Under

this directive, the Secretary held a number of lease sales in the

early 1980s. (See Pls.’ Stmt. of Material Facts ¶ 8; Defs.’

Stmt. of Material Facts ¶ 8.) Before the third lease sale, the

Bureau of Land Management (“BLM”) issued its Final Environmental

Impact Statement on Oil and Gas Leasing in the National Petroleum

Reserve in Alaska (February 1983). (See Pls.’ Stmt. of Material

Facts ¶ 8; Defs.’ Stmt. of Material Facts ¶ 8.)

II. THE CURRENT OIL AND GAS LEASING PROGRAM

In 1997, the BLM published a Notice of Intent to prepare an

Integrated Activity Plan/Environmental Impact Statement

(“IAP/EIS”) for the NPR-A. See 62 Fed. Reg. 6797 (1997). The

goal of the BLM was to determine whether or not new oil and gas

leasing should occur in a 4.6 million acre area (“NPR-A planning

area” or “planning area”) located in the northeast section of the

region. (See Northeast National Petroleum Reserve-Alaska, Final

Integrated Activity Plan/Environmental Impact Statement (“EIS”)

at I-1 to 2.) A draft analysis of the IAP/EIS was completed

within ten months, and for a 90-day period thereafter, the BLM

4
In this same bill, the federal drilling program was also
being funded again. See H.R. Rep. No. 96-1147, at 32-33 (1980).
Though Congress wanted to eventually end this program, it knew
that there would be a time lag between passage of the
appropriations rider (which allowed private leasing in the NPR-A)
and actual implementation of the leasing programs. Id. at 32.
Therefore, Congress continued to fund the government program in
order to ensure that drilling and exploration would occur in the
interim.
 -5-

received public comments on the draft proposals. (See 62 Fed.

Reg. 65,440 (1997).) “BLM received approximately 7,000 written

comment messages and nearly 200 people testified at the public

meetings on the Draft IAP/EIS.” (Record of Decision (“ROD”) at

23.)

After the close of this 90-day period, the Final EIS was

published on August 7, 1998. (See 63 Fed. Reg. 42,431 (1998).)

The EIS included six alternative oil and gas leasing plans, among

them a “Preferred Alternative” plan, which would have opened up

87% of the planning area to oil and gas leasing. (See EIS at IV-

B-1 to IV-G-83.) After a last round of comments, the Secretary

issued the Record of Decision (“ROD”) on October 7, 1998. (Pls.’

Stmt. of Material Facts ¶ 28; Defs.’ Stmt. of Material Facts

¶ 28.) The plan set forth in the ROD not only adopted the

Preferred Alternative, but also set forth some conditions for

implementation, among them compliance with restrictions on

surface activities, consultations with local residents, and

continued protection of the wildlife environment. (See ROD at

v.)

On April 5, 1999, BLM gave final notice of the initial lease

sale under the ROD and the initial lease sale took place on

May 5, 1999, during which BLM issued 133 leases. (See Pls.’

Stmt. of Material Facts ¶ 29; Defs.’ Stmt. of Material Facts

¶ 29.) As of the time that plaintiffs filed their motion for
 -6-

partial summary judgment, one company, ARCO Alaska, Inc., had

applied for a permit to drill in the NPR-A. (See Pls.’ Stmt. of

Material Facts ¶ 30; Defs.’ Stmt. of Material Facts ¶ 30.) BLM

released an Environmental Assessment on ARCO’s application, in

which BLM made a Finding of No Significant Impact, and approved

the application on January 28, 2000. (See Pls.’ Stmt. of

Material Facts ¶ 30; Defs.’ Stmt. of Material Facts ¶ 30.) Since

then, additional leases have been issued and oil companies

continue to propose and conduct oil and gas activities in the

planning area. (See Joint Status Report, Docket Entry 150, at 2-

3.)

DISCUSSION

“Summary judgment is appropriate when the pleadings and the

evidence demonstrate that ‘that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law.’” Feirson v. Dist. of Columbia,

506 F.3d 1063, 1065 (D.C. Cir. 2007) (quoting Fed. R. Civ. P.

56(c). Challenges to agency compliance with NEPA are brought

under the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et

seq. Karst v. EPA, 475 F.3d 1291, 1295 (D.C. Cir. 2007). The

EIS is reviewed under the APA to determine whether the agency’s

actions were “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A);

Communities Against Runway Expansion, Inc. v. FAA, 355 F.3d 678,
 -7-

685 (D.C. Cir. 2004). “A court reviewing an EIS considers

whether an ‘agency took a ‘hard look’ at the environmental

consequences of its decision to go forward with the project.”

Nuclear Info. & Res. Serv. v. NRC, 509 F.3d 562, 568 (D.C. Cir.

2007) (quoting Communities Against Runway Expansion, 355 F.3d at

685). While the review must be careful, the ultimate standard is

a narrow one. A court is not to substitute its judgment for that

of the agency. Envtl. Def. v. United States Army Corps of

Eng’rs, 515 F. Supp. 2d 69, 75 (D.D.C. 2007).

I. NEPA

“Under NEPA, a federal agency must prepare an EIS for ‘major

Federal actions significantly affecting the quality of the human

environment.’” Duncan’s Point Lot Owners Ass’n v. FERC, 522 F.3d

371, 376 (D.C. Cir. 2008) (quoting 42 U.S.C. § 4332(2)(C)).

“This rather general legislative language has been explained and

interpreted in guidelines published by the Council on

Environmental Quality (CEQ), the agency established by NEPA to

serve as a research, resource, and advisory body to the

President.” Natural Resources Defense Council v. Morton, 388 F.

Supp. 829, 832 (D.D.C. 1974), aff’d without opinion, 527 F.2d

1386 (D.C. Cir.), cert. denied, 427 U.S. 913 (1976). The

regulations promulgated by the CEQ are binding on all federal

agencies implementing NEPA. See 40 C.F.R. § 1500.3; Communities

Against Runway Expansion, 355 F.3d at 681.
 -8-

The purpose of NEPA is to incorporate environmental

considerations into federal agencies decision-making processes by

requiring agencies to prepare EISs and to inform the public that

environmental considerations were taken into account during

decision-making. City of Dania Beach v. Federal Aviation

Administration, 485 F.3d 1181, 1185 (D.C. Cir. 2007); see

Weinberger v. Catholic Action of Hawaii/Peace Educ. Project, 454

U.S. 139, 143 (1981)). However, NEPA’s mandate is essentially

procedural, and the Supreme Court has noted the impropriety of

federal courts introducing additional procedural or substantive

standards into the statutory provisions. See City of Alexandria

v. Slater, 198 F.3d 862, 866 (D.C. Cir. 1999); North Slope

Borough v. Andrus, 642 F.2d 589, 598 (D.C. Cir. 1980).

“Obedience to NEPA is a matter of the administrative agency

acquiring and digesting useful information about the

environmental ramifications of major federal projects.” North

Slope Borough, 642 F.2d at 599. “The court’s role is to ensure

that the agency takes a ‘hard look’ at the environmental

consequences of an action, not to interject its own judgment as

to the course of action to be taken.” Hammond v. Norton, 370 F.

Supp. 2d 226, 240 (D.D.C. 2005) (citing Kleppe v. Sierra Club,

427 U.S. 390, 410 n.21 (1976) (quoting Natural Resources Defense

Council v. Morton, 458 F.2d 827, 838 (D.C. Cir. 1972))).
 -9-

A. Count II: site-specific impacts

Plaintiffs contend that defendants failed to comply with

NEPA because the EIS supporting the decision to make land in the

planning area available for oil and gas leasing did not contain

site-specific assessments of environmental impacts. (See Pls.’

Mem. of P. & A. in Supp. of Pls.’ Mot. for Partial Summ. J. on

Counts II-IV and VII-VIII of the First Am. Compl. (“Pls.’ Mem. in

Supp.”) at 6.) Defendants counter that the level of specificity

of the EIS analysis was appropriate for the leasing stage given

the available information and the phased nature of oil and gas

development, and that NEPA and the CEQ regulations allow for

deferring further analysis until more information is available.

Defendants state that the Department of the Interior (“DOI”)

has followed an accepted procedure in using for
the EIS all the currently available information to
analyze the foreseeable site-specific impacts of
leasing in the planning area, while still recognizing
that additional information concerning the precise
locations where the site-specific impacts may occur
will simply not be available until after BLM issues
leases and the lessees determine where, when and how
they propose to conduct their field activities.

(Fed. Defs.’ Mem. in Opp’n to Pls.’ Mot. for Partial Summ. J. on

Counts II-IV and VII-VIII of the First Am. Compl. & in Supp. of

Defs.’ Mot. for Summ. J. (“Defs.’ Opp’n & Mem. in Supp.”) at 20.)

Where an agency administering oil and gas leasing on federal

lands “chooses not to retain the authority to preclude all

surface disturbing activities, then an EIS assessing the full
 -10-

environmental consequences of leasing must be prepared at the

point of commitment -- when the leases are issued.” Sierra Club

v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 1983); see also

Wyoming Outdoor Council v. United States Forest Service, 165 F.3d

43, 49 (D.C. Cir. 1999) (holding that “point of irreversible and

irretrievable commitment of resources and concomitant obligation

to fully comply with NEPA do not mature until leases are

issued”); Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1227

(9th Cir. 1988) (holding that “leases which ‘do not reserve to

the government the absolute right to prevent all

surface-disturbing activity’ cannot be sold without preparation

of an EIS”). The action at issue here -- BLM’s decision to issue

leases which do not preclude all surface disturbing activity --

is a commitment of resources which requires an EIS assessing the

environmental consequences.5

At the same time, the analysis in an EIS is governed by the

CEQ regulations, which require that only the “reasonably

foreseeable” environmental impacts be considered in an EIS:

When an agency is evaluating reasonably foreseeable
significant adverse effects on the human environment in
an environmental impact statement and there is
incomplete or unavailable information, the agency shall
always make clear that such information is lacking.

5
BLM, having issued leases permitting surface occupancy in
the planning area, can attach stipulations to a lessee’s surface
use plan or permit to drill under 43 C.F.R. § 3131.3, but the
leases do not reserve to the government the right to preclude all
surface disturbing activity.
 -11-

40 C.F.R. § 1502.22. In addition, in the context of Outer

Continental Shelf Lands Act (“OCSLA”) leasing, courts have

acknowledged that the limited information available at the

leasing stage necessarily limits the scope of the environmental

analysis. For example, the Ninth Circuit in Tribal Village of

Akutan v. Hodel, noted that

[w]e are least troubled by what may seem to be incomplete
or speculative data at the lease sale stage. Prior to
exploration, it is difficult to make so much as an
educated guess as to the volume of oil likely to be
produced or the probable location of oil wells.

869 F.2d 1185, 1192 (9th Cir. 1989). The court further stated

that “[t]he omission of speculative information from an

environmental impact statement prepared at the lease sale stage

is permissible; however, an environmental impact statement which

is incomplete due to the omission of ascertainable facts, or the

inclusion of erroneous information, violates the disclosure

requirement of 42 U.S.C. § 4332(2)(C).” Id. at 1192 n.1.

The “rule of reason” requires that consideration be given to

practical limitations on the agency’s analysis, such as the

information available at the time. See Transmission Access

Policy Study Group v. FERC, 225 F.3d 667, 736 (D.C. Cir. 2000);

North Slope Borough, 642 F.2d at 600. In North Slope Borough,

the D.C. Circuit reversed the district court in part and held

that the environmental impact statement prepared for a lease sale

pursuant to OCSLA was valid under NEPA. However, the court noted
 -12-

that the district court was correct in stating that “‘[t]he

decision of how much detail to include is one for the agency

itself,’ guided by a ‘rule of reason.’” Id. (quoting North Slope

Borough v. Andrus, 486 F. Supp. 326, 345 (D.D.C. 1979)).

The CEQ regulations also provide for “tiering” of

environmental analyses under certain circumstances.

Agencies are encouraged to tier their environmental
impact statements to eliminate repetitive discussions
of the same issues and to focus on the actual issues
ripe for decision at each level of environmental
review (§ 1508.28). Whenever a broad environmental
impact statement has been prepared (such as a program
or policy statement) and a subsequent statement or
environmental assessment is then prepared on an action
included within the entire program or policy (such as
a site specific action) the subsequent statement or
environmental assessment need only summarize the issues
discussed in the broader statement and incorporate
discussions from the broader statement by reference and
shall concentrate on the issues specific to the
subsequent action. The subsequent document shall state
where the earlier document is available. Tiering may
also be appropriate for different stages of actions.

40 C.F.R. § 1502.20

“Tiering” refers to the coverage of general matters
in broader environmental impact statements (such as
national program or policy statements) with subsequent
narrower statements or environmental analyses (such as
regional or basinwide program statements or ultimately
site-specific statements) incorporating by reference
the general discussions and concentrating solely on
the issues specific to the statement subsequently
prepared. Tiering is appropriate when the sequence of
statements or analyses is:

(a) From a program, plan, or policy environmental
impact statement to a program, plan, or policy
statement or analysis of lesser scope or to a site-
specific statement or analysis.
 -13-

(b) From an environmental impact statement on a
specific action at an early stage (such as need and
site selection) to a supplement (which is preferred) or
a subsequent statement or analysis at a later stage
(such as environmental mitigation). Tiering in such
cases is appropriate when it helps the lead agency to
focus on the issues which are ripe for decision and
exclude from consideration issues already decided or not
yet ripe.

40 C.F.R. § 1508.28. This circuit has approved of an agency’s

use of the tiered approach in situations where completing a

program “involves many separate sub-projects and will take many

years.” Nevada vs. Department of Energy, 457 F.3d 78, 91 (D.C.

Cir. 2006). In addition, the Tenth Circuit has approved of

tiering where the specificity that NEPA requires is not possible

until concrete specific proposals are submitted. See Park County

Resource Council, Inc. v. Dep’t of Agriculture, 817 F.2d 609, 624

(10th Cir. 1987).

Defendants state that they intend to conduct further site-

specific environmental analyses as to precise locations within

the area as specific leases are issued and the lessees seek

approval to conduct oil exploration and development. Indeed, at

the time the defendants filed their brief, BLM had conducted

three additional environmental assessments as to specific

exploration proposals. (See Defs.’ Opp’n & Mem. in Supp. at 24

n.21.) That defendants may continue to assess impacts as more

information becomes available does not indicate that defendants

failed to take a “hard look” at the environmental consequences of
 -14-

its proposed action in the EIS. Plaintiffs suggest that because

defendants intend to conduct (and indeed have already conducted)

further environmental assessments as proposals are submitted to

explore and develop specific sites, the EIS must not have

evaluated fully the environmental impacts of the decision to

lease. This argument fails to recognize the limitations on the

information available to the agency at the time the EIS was

prepared.

Because defendants did not know the exact location of

exploratory wells and development at the time of the EIS, they

were limited in their site-specific analysis. Defendants make

clear in the EIS and ROD that further site-specific analysis will

be conducted prior to exploration in the planning area. Lessees

are required to apply to BLM for approval of their exploration

plans and applications for permits to drill. (See EIS at II-48,

II-94.) Defendants state that they “will conduct any necessary

additional NEPA analyses tiered to the IAP/EIS” at those stages.

(See Defs.’ Opp’n & Mem. in Supp. at 24.) Indeed, defendants

have conducted additional NEPA analyses when specific proposals

for exploration and development have been submitted. (See id. at

24 n.21.)

Plaintiffs specifically attack the sufficiency of the

discussion of impacts to particular resources resulting from the

Preferred Alternative. (See Pls.’ Mem. in Supp. at 15-21.)
 -15-

Considering plaintiffs’ arguments and weighing the EIS in its

entirety, it adequately addresses the foreseeable site-specific

impacts. The EIS sufficiently addresses the various resources

and their location within the 4.6 million acre site, and the

impacts leasing will have on those resources so as to leave

defendants in a good position to consider the environmental

consequences of the proposed action.

Defendants state that the impact analysis in Section IV of

the EIS “is tied to particular resources that occur at various

sites throughout the planning area, as delineated earlier in

sections II and III of the EIS.” (Defs.’ Opp’n & Mem. in Supp.

at 25.) Because the vast area is not homogenous, the EIS

specifies sub-units designated as Land Use Emphasis Areas

(“LUEAs”) as a method of identifying resources specific to

certain areas. While not every square foot of the 46 million

acres is analyzed, the “rule of reason” does not require it.

Section II of the EIS, “Alternatives,” describes twelve

different LUEAs within the planning area and provides maps of

their respective locations. LUEAs are described in Section II as

follows:

Each alternative contains management actions
for the entire planning area. Certain parts
of the area, however, are particularly important
because of their surface-resource values. In
the IAP/EIS, these areas are called Land Use
Emphasis Areas (LUEA’s), and much of the
discussion of the alternatives is organized to
show what management is proposed in each
 -16-

alternative for each LUEA. Nearly all LUEA’s
identify specific resource values, such as
important bird or caribou habitat, that are
linked to specific pieces of land. In this way,
BLM will be able to focus specific management
measures for each resource on the appropriate
lands. Some alternatives propose special
designations for some LUEA’s, and nearly all
LUEA’s have stipulations identified to protect
specific resources within them.

(EIS at II-1.) BLM’s description and mapping of the location of

the LUEAs in the EIS operate to identify areas with specific

resources within the planning area. (See id. at II-1 to 17.)

The LUEAs are named as follows: Teshekpuk Lake Watershed, Goose

Molting Habitat, Spectacled Eider Breeding Range, Teshekpuk Lake

Caribou Habitat, Fish Habitat, Colville River Raptor, Passerine,

and Moose Area, Umiat Recreation Site, Scenic Areas, Pik Dunes,

Ikpikpuk Paleontological Sites, Kuukpik Corporation Entitlement

and Potential Colville Wild and Scenic River. (See id. at II-1

to II-3.)

Section II also includes a discussion of the alternatives

and provides maps of the proposed land uses and restrictions for

each alternative. (See id. at II-19 to 28.) The discussion and

maps show what type of activity would be permitted under each

alternative in each location in the planning area. (See id.)

There are also a number of stipulations governing the

alternatives which demonstrate which types of activities would be

permitted under each alternative in specific locations within the

planning area. (See id. at II-29 to II-48.)
 -17-

Section III, “Description of the Affected Environment,” also

provides specific information as to the location of resources.

This includes description and mapping of the density of

particular types of birds (see id. at III-B-18 to 38) and mammals

(see id. at III-B-39 to 51). The EIS discusses and maps, among

other resources, the location of soils (see id. at III-A-34 to

36), paleontological resources (see id. at III-A-39 to 40), water

(see id. at III-A-46 to 49), fish (see id. at III-B-5 to 11), and

air quality. (See id. at III-A-57.)

Having discussed the alternatives and the types of

activities permitted in certain locations and having described

and identified the location of various resources within the

planning area, the EIS then describes the impact of the action on

those resources in Section IV. Section IV, “Environmental

Consequences,” describes the effect of various activities on

resources under each alternative.

Plaintiff argues that the discussion of impacts to soils is

insufficient because it discusses “the overall impact by

describing the total area expected to be affected throughout the

planning area” and does not mention site-specific impact. (See

Pls.’ Mem. in Supp. at 15.) A review of the EIS, however,

reveals that it adequately considers environmental impacts to

soils, explaining that the impact to soils is largely one of

erosion due to activities disturbing vegetation. (See EIS at IV-
 -18-

G-1 to 2.) The analysis provided is sufficient to demonstrate

that the BLM considered the environmental ramifications of its

proposed project on soils.

Plaintiff attacks the section concerning paleontological

resources for reasons similar to those for which it challenges

the discussion of impacts to soils -- that the impact of various

activities is “described by reference to the total number of

acres hypothesized to be disturbed under the alternative; no

sites or locations for any paleontological resources are

identified or impacts to such specific resources described.”

(Pls.’ Mem. in Supp. at 16.) As defendants explain, the most

paleontological resources are deeply buried underground and, as

such, are protected by nature. (See EIS at III-A-40.) Further,

their specific location has not been determined and their

existence is generally homogenous across the planning area. (See

id. at III-A-39 to 40). In addition, impacts upon this resource

are mitigated by the stipulation which requires that a

paleontological resources survey be conducted of any site that is

proposed for ground-disturbing activities. (See ROD at 43,

Stipulation 74.) BLM’s consideration of the impacts to

paleontological resources meets the requirement under NEPA to

consider environmental effects of proposed actions in the

decision-making process.
 -19-

With respect to the section on water resources and water

quality, plaintiffs argue that while the there is a general

discussion of how development activities such as building ice

roads using lake water is provided, the “impacts are summarized

only by describing the hypothesized total level of activity.”

(See Pls.’ Mem. in Supp. at 16.) Plaintiffs concede, however,

that there is specific discussion of the potential impacts of an

oil spill to the Colville River and Teshekpuk Lake. (See id.)

The EIS includes an appropriate level of analysis with respect to

water resources for BLM’s decisionmaking process. For example,

it analyzed the impacts from water extraction for ice roads and

pad, water impoundment and erosion effects around structures and

roads, and spillage of oil and saltwater. (See EIS at IV-G-12 to

13.) Although water extraction from particular lakes was not

specified, the location and depth of the lakes are mapped in the

EIS (see id. at III-A-49), and the discussion regarding water

extraction impacts is related to the depth of the lake at issue.

(See id. at IV-G-8.) Therefore, while the lakes are not all

analyzed individually, a task which would be speculative given

the fact that the location of oil and gas activities was unknown,

the analysis is sufficient for the “hard look” requirement. As

with other resources, BLM chose to include stipulations in the

Preferred Alternative which minimize the impact of oil and gas

development on this resource, such as excluding certain areas
 -20-

from leasing or occupancy. (See id. at IV-G-6; ROD at 36-37, 43-

44 (Stipulations 39, 41, 70, 78).) In sum, the water resource

analysis provided sufficient information for BLM’s consideration

of the environmental effects of the proposed action.

Plaintiffs further contend that the air quality discussion

is lacking because it “treats all of the North Slope as uniform”

and fails to discuss whether localized industrial emissions will

harm resource values of specific sites like the Umiat Recreation

Site LUEA, Scenic Areas LUEA, or Pik Dunes LUEA. (See Pls.’ Mem.

in Supp. at 16.) The EIS, however, states that localized impacts

would be minimal and would remain within air quality standards.

(See EIS at IV-G-15 to 16.) Given BLM’s determination that the

impacts are not significant, further analysis as to specific

sites is not necessary under NEPA as the regulation provides that

“[t]here shall only be brief discussion of other than significant

issues.” 40 C.F.R. § 1502.2(b).

As to fish, plaintiffs argue that there is only “general

discussion of impact mechanisms with no site-specific assessment”

even though “the FEIS elsewhere recognizes that some areas are

particularly important for fish.” (See Pls.’ Mem. in Supp. at

16.) Defendants concede that because the location of activities

was not known at the leasing stage, “the particular lakes where

the impacts to fish would occur is not delineated in the impacts

analysis.” (Defs.’ Opp’n & Mem. in Supp. at 33.) Defendants
 -21-

further state that “[i]t would be unnecessary and indeed

impossible to study each one of these thousands of water bodies

individually for purely speculative impacts from development that

may never occur in or near that particular location.” (Id.) The

EIS’s analysis of the impacts is sufficient to satisfy NEPA

because it provides the various activities and their likely

impacts on fish in the planning area. (See EIS at IV-G-21 to

23.) Requiring defendants to provide analysis with respect to

each individual water body without knowing where the activities

would occur would be unreasonable and speculative and would be

beyond NEPA’s requirements.

Plaintiffs argue that the discussion regarding vegetation,

including wetlands, is also generalized and not site-specific,

but also attacks the sufficiency of the EIS on the basis that

neither Chapter III nor IV describes the location of critical

wetlands resources. (See Pls.’ Mem. in Supp. at 17.) Plaintiffs

point to the fact that the FWS, the Environmental Protection

Agency (“EPA”) and the Army Corps of Engineers provided comments

to the draft EIS that criticized it for the lack of information

concerning wetlands. (See id. at 17-18.) Although in response

to the comments BLM included in the EIS a table of vegetation

types in the planning area based on satellite data, plaintiffs

contend that BLM should have identified where different kinds of

vegetation were located and assessed their value at particular
 -22-

sites and that the EIS and ROD improperly defer the task of

identifying key wetlands until after leasing. (See id. at 19

(citing ROD at 38 (Stipulation #46)).) Plaintiff further argues

that “the EIS merely describes how vegetation is generally

affected by oil development activities, . . . and then summarizes

the total estimated affect by describing the total number of

acres expected to be disturbed by the hypothesized level of

development under each alternative.” (Pls.’ Mem. in Supp. at

19.)

The EIS provides the necessary information for BLM’s

consideration of environmental effects in its decision-making

with respect to what areas to make available to leasing based on

the analysis conducted as to vegetation. BLM discussed the

different impacts on different vegetative varieties and discussed

the proportion of impacts to different land-cover classes based

on certain assumptions. (See EIS at IV-G-16 to 18.)

With respect to wetlands, the EIS adequately identified the

amount and distribution of wetlands throughout the planning area

as well as the impacts of the various alternatives. It discussed

impacts on wetlands of overland moves and seismic exploration.

(See id. at IV-G-16.) It also discussed the proportion of

impacts likely to occur to each land-cover class (see id. at IV-

B-5) as well as impacts on wetlands due to changes to moisture

regimes. (See id. at IV-G-18.) In sum, the EIS’s discussion of
 -23-

the impacts to vegetation and wetlands was sufficient for a

decision that considered the environmental impacts to those

resources.

Lastly, the plaintiff argues that “the reader [of the EIS]

learns only the general mechanisms though which impacts might

occur and receives an estimate of the total level of impact based

on a hypothetical number of wells located somewhere in the 4.6

million acres of the planning area.” (Pls.’ Mem. in Supp. at

19.)

The discussion in Section IV, read in conjunction with

Sections II and III, as well as the EIS as a whole, provides

sufficient analysis of the environmental effects of the proposed

alternatives on the various areas within the NPR-A. This

satisfies the “hard look” requirement of NEPA, Kleppe, 427 U.S.

at 410 n.21, as well as the twofold purpose of NEPA to ensure

that a federal agency considers environmental consequences in

making its decision and to inform the public that the agency has

done so. See Weinberger, 454 U.S. at 143. Accordingly,

plaintiffs’ motion for summary judgment on Count II will be

denied and defendants’ cross-motion for summary judgment on Count

II will be granted.

B. Count III: wilderness

Plaintiffs allege in Count III that the EIS fails to comply

with NEPA and violates the APA because defendants have failed to
 -24-

treat wilderness as a discrete resource and have failed to

consider adequately the impacts of the proposed leasing program

on the wilderness of the area.

Plaintiffs argue that while Congress and DOI have recognized

that the planning area has many areas with substantial wilderness

values, defendants have not taken a “hard look” at the impact

because the EIS does not focus on “particular wilderness values

of any portion of the planning area, their relative wilderness

value, or the ways in which different alternatives would affect

those relative values.” (Pls.’ Mem. in Supp. at 25.) Plaintiffs

contend that the EIS is inadequate because it does not describe

or rate the wilderness character of different parts of the NPR-A

and does not provide “what the actual loss of wilderness will be

under a particular Alternative, or if another Alternative would

preserve more of the especially valuable wilderness sites than

would the Preferred Alternative.” (Id. at 26.) According to

plaintiffs, the EIS is insufficient because it “does not inform

the reader what options for formal wilderness designation under

the Wilderness Act will be foreclosed to Congress by oil and gas

leasing.” (Id.)

In the Wilderness Act, Congress defined wilderness as

an area where the earth and its community of life are
untrammeled by man, where man himself is a visitor who
does not remain. An area of wilderness is further
defined to mean in this chapter an area of undeveloped
Federal land retaining its primeval character and
 -25-

influence, without permanent improvements or human
habitation, which is protected and managed so as to
preserve its natural conditions and which (1) generally
appears to have been affected by the forces of nature,
with the imprint of man’s work substantially
unnoticeable; (2) has outstanding opportunities for
solitude or a primitive and unconfined type of
recreation; (3) has at least five thousand acres of
land or is of sufficient size as to make practicable
its preservation and use in an unimpaired condition;
and (4) may also contain ecological, geological, or
other features of scientific, educational, scenic, or
historical value.

16 U.S.C. § 1131(c). While conceding that the Wilderness Act

does not apply to this case, plaintiffs argue that this

definition is applicable in determining whether defendants

complied with NEPA’s requirements. In support of their position

that when agency action threatens “loss of wilderness,” the loss

must be analyzed under NEPA, plaintiffs cite Smith v. United

States Forest Service, 33 F.3d 1072, 1079 (9th Cir. 1994), State

of California v. Bergland, 483 F. Supp. 465 (E.D. Cal. 1980) and

State of California v. Block, 690 F.2d 753 (9th Cir. 1982)

(affirming in part and reversing in part State of California v.

Bergland). Defendants attempt to distinguish those cases on the

basis that each involved areas subject to the wilderness review

requirement of the Wilderness Act, unlike the NPR-A, which is

exempt from the wilderness review requirement. (See Defs.’ Opp’n

& Mem. in Supp. at 40, n.37.) However, plaintiffs respond that

while the NPR-A is not subject to the Wilderness Act, these cases

support the conclusion that wilderness must be analyzed as a
 -26-

resource under NEPA because of the wilderness values that could

be lost to development. (See Pls.’ Opp’n & Reply at 44.)

Assuming for the sake of argument that defendants were

required to consider wilderness values in the EIS, the EIS

nevertheless adequately considers wilderness in its analysis.

First, the EIS includes a discussion regarding alternatives that

were considered but eliminated from the detailed analysis. Among

these is the alternative of formally designating the NPR-A as a

wildlife refuge or wilderness. (See EIS at II-51 to 52.) In

addition, while the EIS does not have a separate “wilderness”

section, the EIS includes in its description of the “affected

environment” paleontological resources (see EIS at III-A-40),

biological resources (see EIS at III-B-1 to 63), including

“significant bird concentrations” (EIS at III-B-11 to 39) and

mammals in the planning area (see EIS at III-B-39 to 47),

recreation and visual resources (see EIS at III-C-47), and

“previous planning efforts concerning Wild and Scenic Rivers

inventories and studies.” (See EIS at III-C-49 and Appx. G.)

The EIS also addresses the environmental consequences of the

proposed action and its alternatives on the wilderness resources,

including water quality, vegetation, fish, birds, mammals,

endangered and threatened species, and recreation and visual

resources. (See EIS at IV-B-1 to 19; EIS at II-59, Table II.D-

2.) The EIS also complies because it addresses comments that the
 -27-

planning area should either be designated a wilderness area or a

national wildlife refuge, it sufficiently describes the “affected

environment,” including those values that plaintiff refers to as

“wilderness characteristics,” and it assesses the “environmental

consequences” of the proposed action and its alternatives.

In addition to the resources addressed in the EIS, the DOI

also considered past wilderness studies in preparing the EIS and

reaching its decision. (Administrative R. at 961; Defs.’ Opp’n &

Mem. in Supp. at 44-46.) Assuming for argument’s sake that

defendants were required to consider wilderness values in the

EIS, the EIS provides the information necessary for defendants to

take the requisite “hard look” at the environmental impacts on

wilderness. Accordingly, plaintiffs’ motion for summary judgment

on Count III will be denied and defendants’ cross-motion for

summary judgment on Count III will be granted.

C. Count IV: cumulative impacts

Plaintiffs contend that defendants have violated NEPA

because the EIS fails to consider the cumulative impacts of the

decision to conduct oil and gas leasing in the NPR-A. The

regulations promulgated by the Council for Environmental Quality

provide the definition for cumulative impact:

“Cumulative impact” is the impact on the environment
which results from the incremental impact of the action
when added to other past, present, and reasonably
foreseeable future actions regardless of what agency
(Federal or non-Federal) or person undertakes such
 -28-

other actions. Cumulative impacts can result from
individually minor but collectively significant actions
taking place over a period of time.

40 CFR § 1508.7. NEPA and the CEQ regulations require

comprehensive analysis of the cumulative impact of proposed

actions. See Tomac v. Norton, 433 F.3d 852, 864 (D.C. Cir.

2006); National Wildlife Federation v. F.E.R.C., 912 F.2d 1471,

1476 (D.C. Cir. 1990); 40 C.F.R. § 1508.25(c). “The purpose of

this requirement is to prevent agencies from dividing one project

into multiple individual actions ‘each of which individually has

an insignificant environmental impact, but which collectively

have a substantial impact.’” Hammond, 370 F. Supp. 2d at 240

(quoting Natural Resources Defense Council, Inc. v. Hodel, 865

F.2d 288, 297-298 (D.C. Cir. 1988) (internal citations omitted)).

Plaintiffs first argue that the EIS failed to consider the

synergistic effects of development -- in other words, how the

cumulative effects interact to create environmental impacts that

are greater than the sum of the individual effects. (See Pls.’

Mem. in Supp. at 31.) Plaintiffs argue that defendants were

required to consider not only the incremental effects, but also

the synergistic effects of the proposal. The incremental

effects, plaintiffs point out, are merely a sum of all of the

parts, whereas the synergistic effects are the effects resulting

from the interaction of the various parts such that the total
 -29-

effects are greater than the sum of the individual effects.

(See Pls.’ Opp’n & Reply at 31.)

Defendants respond that they considered the incremental

impact of the action and the overall effects of individual

impacts. (See Defs.’ Opp’n & Mem. in Supp. at 49.) BLM concedes

it did not consider the “synergistic” impacts as defined by

plaintiffs because BLM had no information to suggest that

synergistic impacts existed which required further analysis,

citing the declaration of Raymond Emerson, an Environmental

Special Assistant with the Minerals Management Service of the

DOI. (See Defs.’ Reply at 18.) Emerson states that the EIS

considered synergistic impacts “where there was an indication in

the scientific literature or from field observations of agency

resource specialists that such impacts might possibly occur (such

as with thermokast or global warming reactions, or behavioral

responses of caribou to pipelines and roads).” (Emerson Decl.

¶ 6.) He further states that “[w]here synergistic impacts were

not specifically described in the EIS, it was because there were

no studies and no information that would lead the agency to

expect that such impacts could reasonably be anticipated to

occur. Further discussion of synergistic impacts was not

included in the EIS because it could only have been based on

speculation which would not have been reasonable to include in

the cumulative impacts section.” (Id.)
 -30-

Consideration of synergistic impact is not required where no

such impact will result from the proposed agency action. The

Supreme Court has stated that “when several proposals . . . that

will have cumulative or synergistic environmental impact upon a

region are pending concurrently before an agency, their

environmental consequences must be considered together. Only

through comprehensive consideration of pending proposals can the

agency evaluate different courses of action.” Kleppe, 427 U.S.

390 at 410 (emphasis added; footnotes omitted); see also Hammond,

370 F. Supp. 2d at 245-246 (no comprehensive EIS necessary where

agency’s determination that a project would not have cumulative

or synergistic effects was accepted); Sierra Club v. Watkins, 808

F. Supp. 852, 864 (D.D.C. 1991) (agency not required to prepare a

programmatic EIS where there was no evidence that proposed action

would have a cumulative or synergistic effect). BLM has

explained that the synergistic impact was not considered as to

all resources because such impact could not reasonably be

anticipated to occur. An agency is not required to engage in

speculation in the EIS, Hodel, 865 F.2d at 295 (stating that

agencies are not required to consider alternatives that are

remote and speculative), but is required to address only relevant

issues. See id. at 294. BLM’s decision not to include

synergistic impact is entitled to judicial deference “as long as
 -31-

the agency’s decision is ‘fully informed’ and ‘well-

considered. . ..’” Id.

The question remains whether BLM adequately considered the

cumulative impact of the proposed actions. With respect to this

issue, plaintiffs first assert that the EIS subsection addressing

birds and endangered species does not discuss how the impacts

from the previous North Slope development6 will interact with the

proposed development in the NPR-A. Plaintiffs also argue that

the subsection on fish is deficient because it only addresses the

effects on fish in the planning area, not the entire cumulative

area. Lastly, plaintiffs contend that the cumulative impact

analysis in the EIS lacks sufficient detail to meet the “hard

look” requirement.

A review of the EIS reveals that it compares the cumulative

impacts of the various alternatives on birds. (See EIS at IV-H-

32 to 33.) The EIS notes that “[c]ontribution of [Alternative E]

to cumulative disturbance and oil spill effects is expected to be

75-90 percent for goose populations” (id. at IV-H-32), but that

because the Goose Molting Habitat Area is not open to oil and gas

development, “contribution of this alternative to cumulative

disturbance and oil spill effects is expected to be less than 5-

10 percent above Alternative A.” (Id. at IV-H-33.) Similarly,

6
The previous development is North Slope oil and gas
development on a five hundred square mile area adjacent to the
NPR-A planning area. (Pls.’ Mot. for Partial Summ. J. at 28.)
 -32-

the EIS provides sufficient analysis of the cumulative impacts on

Eiders (see id. at IV-H-17, 36 to 37) and fish (see id. at IV-H-

7) and is sufficiently detailed.

In sum, the EIS provides the necessary information for the

agency to consider the cumulative impacts of the proposed actions

on the environment so as to provide a reasoned basis for deciding

whether and how to proceed with the proposed course of action.

Accordingly, plaintiffs’ motion for summary judgment on Count IV

will be denied and defendants’ cross-motion for summary judgment

on Count IV will be granted.

II. COUNT VII: EXECUTIVE ORDER 11,990

Plaintiffs allege that the BLM has violated Executive Order

11,990 (“EO 11,990”) by failing in their EIS to identify

wetlands, to analyze thoroughly impacts to wetlands, to conduct a

practicability analysis and make a practicability finding, and to

formulate and thoroughly discuss measures to minimize harm to

wetlands. (See Pls.’ Mem. in Supp. at 40-48.)

Defendants respond that plaintiffs’ claim fails because the

challenge under EO 11,990 is untimely, compliance with EO 11,990

is not enforceable by a private cause of action, and EO 11,990

does not apply at the leasing stage of oil and gas development

addressed in the EIS. (See Defs.’ Opp’n & Mem. in Supp. at 62.)

Defendants further contend that DOI fulfilled the aim of EO

11,990 in its consideration of wetlands issues. (See id.)
 -33-

EO 11,990 provides:

[E]ach agency, to the extent permitted by law, shall
avoid undertaking or providing assistance for new
construction located in wetlands unless the head of
the agency finds (1) that there is no practicable
alternative to such construction, and (2) that the
proposed action includes all practicable measures to
minimize harm to wetlands which may result from such
use. In making this finding the head of the agency
may take into account economic, environmental and
other pertinent factors.

Exec. Order No. 11,990, § 2a, 42 Fed. Reg. 26,961 (May 24, 1977).

EO 11,990 further provides that “[t]he term ‘new construction’

shall include draining, dredging, channelizing, filling, diking,

impounding, and related activities and any structures or

facilities begun or authorized after the effective date of this

Order.” Id. at § 7(b).

A. Timeliness of plaintiffs’ claim

Defendants argue that plaintiffs’ claim should be dismissed

as untimely because plaintiffs failed to raise the issue at any

of the three public comment opportunities provided by BLM before

BLM finalized its NEPA documentation. (See Defs.’ Opp’n & Mem.

in Supp. at 62.)

Plaintiffs respond that they are not precluded from raising

defendants’ alleged lack of compliance with EO 11,990 because

defendants were aware of their duty to comply with the EO,

plaintiffs were not required to alert defendants of its legal

obligations, and plaintiffs and several federal agencies noted
 -34-

the lack of wetlands analysis in the draft EIS. (See Pls.’ Opp’n

& Reply at 62-63.)

Vermont Yankee Nuclear Power Corp. v. Natural Resources

Defense Council, Inc., 435 U.S. 519 (1978), upon which defendants

rely for the proposition that plaintiffs were required to raise

compliance with EO 11,990 during the comment periods, held that

though NEPA requires an agency to consider every significant

aspect of the environmental impact of a proposed action, it was

nevertheless the intervenors’ responsibility to structure their

participation so that it was meaningful and alerted the agency to

the intervenors’ position and contentions. See id. at 553.

Defendants also rely on Northside Sanitary Landfill, Inc. v.

Thomas, 849 F.2d 1516 (D.C. Cir. 1988), in which the court

declined to address the plaintiff’s objections to the EPA during

the rulemaking process, because they were not properly presented

in that plaintiff merely filed 420 pages of documents without

specifying why it considered those documents or anything in them

relevant to the rulemaking procedure. See id. at 1519-20.

Vermont Yankee and Northside Sanitary Landfill can be

distinguished from this case because in those cases, the

plaintiffs failed to raise during the NEPA public comment process

any factual argument regarding the substantive content of the

EIS. By contrast, plaintiffs and federal agencies here noted in

their comments that the draft EIS failed to analyze the potential
 -35-

effects on wetlands. Defendants concede that plaintiffs and

government agencies raised concerns regarding defendants’

analysis regarding wetlands, but argue that because there was no

mention of EO 11,990 or its required finding of “no practical

alternatives,” plaintiffs cannot rely on it as a basis for a

claim now. (Defs.’ Opp’n & Mem. in Supp. at 63-64, nn.51-53.)

In Northwest Environmental Defense Center v. Bonneville Power

Admin., 117 F.3d 1520, 1535 (9th Cir. 1997), the court held that

defendants had “a duty to comply with the public participation

processes regardless of whether participants complain of

violations.” Id. Because defendants are required to meet their

legal obligations under EO 11,990 regardless of whether the

executive order was raised at the public participation level and

because plaintiffs and others raised specific factual issues

concerning wetlands, plaintiffs’ challenge is not barred for

failure to raise the specific requirements of EO 11,990 during

the administrative proceedings.

B. Reviewability of compliance with EO 11,990

Defendants contend that compliance with EO 11,990 is not

reviewable because it does not have the force and effect of law

and does not create a private right of action. (See Defs.’ Opp’n

& Mem. in Supp. at 64.) Plaintiffs respond that EO 11,990 is

reviewable under the Administrative Procedure Act and that it
 -36-

carries the force of law because it has statutory foundation in

NEPA. (See Pls.’ Reply & Opp’n at 52-54.)

National Wildlife Federation v. Babbitt, Civil Action

No. 88-0301 (WBB), 1993 WL 304008, at *7 (D.D.C. 1993), concluded

that EO 11,990 is reviewable under the APA. That opinion

persuasively decides that EO 11,990 has the force and effect of

law because “[t]he President acted under NEPA’s implied

authorization when he issued Executive Order 11, 990.” Id. at

*8. That decision also persuasively held that judicial review

was available under the APA because EO 11,990 placed substantive

limits on agency discretion in that it imposes certain non-

discretionary duties on the heads of agencies. See id. In sum,

EO 11,990 is reviewable under the APA.

C. Application of EO 11,990

Defendants maintain that EO 11,990 has not been violated

because it does not apply at this stage in the decision-making

process because the decision involves no “new construction” as

defined by EO 11,990. (See Defs.’ Opp’n & Mem. in Supp. at 68-

69.) Defendants maintain that new construction would occur only

at the oil and gas exploration and development stages, which will

require issuance of specific permits and rights-of-way for

ground-impacting activities, and that BLM will conduct additional

NEPA analysis at that point, including the factors in EO 11,990.

(See id. at 69.)
 -37-

Plaintiffs argue that EO 11,990 applies at the oil and gas

leasing stage because leasing is a “related activity” under EO

11,990’s definition of “new construction” and because the action

constitutes “providing assistance for new construction.” (Pls.’

Reply & Opp’n at 60 (quoting EO 11,990).)

There is support for the notion that leasing constitutes

construction under the EO 11,990 definition which includes

“draining, dredging, channelizing, filling, diking, impounding,

and related activities[.]” Exec. Order No. 11,990, § 7b, 42 Fed.

Reg. 26,961 (May 24, 1977). See Nat’l Wildlife Federation, 1993

WL 304008, at *7 (stating that “permitting ‘construction’ would

include coal leasing”). In addition, BLM’s decision to lease

land for oil and gas exploration and development constitutes

“providing assistance for new construction located in wetlands,”

Exec. Order No. 11,990 at § 2a, because it is the first step

toward exploration and development, and because as a result of

BLM’s decision, BLM has ensured that some construction on the

lands will occur. Although BLM will be able to place conditions

on development of specific leases when making specific decisions

on exploration and development, it will not be able to prohibit

development completely. Accordingly, BLM’s decision has provided

assistance for new construction, and EO 11,990 applies at this

stage in the decision-making process.
 -38-

D. Adequacy of wetlands consideration in EIS under EO
11,990

Defendants assert that DOI “compl[ied] with the policy of

[EO 11,990] to identify wetlands and ‘consider factors relevant

to a proposal’s effect on the survival and quality of the

wetlands.’” (Defs.’ Opp’n & Mem. in Supp. at 69 (quoting EO

11,990 § 5).) Plaintiffs respond that defendants failed to

address EO 11,990’s tasks in that it did not identify the

wetlands at risk, thoroughly examine the impacts to wetlands,

make a finding that there was no practicable alternative, or

include all practicable measures to minimize harm to wetlands.

(See Pls.’ Mem. in Supp. at 40-48.)

The EIS provides in the section entitled “Description of the

Affected Environment” the amount and distribution of wetlands as

well as the species of wetlands vegetation. (EIS at III-B-1 to

2, 5.) The EIS discusses the effects of overland moves and

seismic exploration on wet tundra (see id. at IV-B-4 and IV-G-

16), notes that seismic activities would result in “minor

diversion of shallow water tracts and limited ponding in places

where track depression compresses the organic mat sufficiently to

alter the thermal regime, melt surficial ground ice, and alter

the native vegetation” (see id. at IV-B-2 to 3), provides the

proportion of impacts that would occur to each land cover

category (see id. at IV-B-5), and considers the changes in
 -39-

moisture regimes of tundra resulting from oil development. (See

id. at IV-C-15 and IV-G-18.)

The EIS satisfies the requirements of EO 11,990 because it

provides adequate analysis of the effects of the proposed actions

on wetlands in the sections concerning water resources,

vegetation and waterfowl habitat. Accordingly, plaintiffs’

motion for summary judgment on Count VII will be denied and

defendants’ cross-motion for summary judgment on Count VII will

be granted.

III. COUNT VIII: ENDANGERED SPECIES ACT

Plaintiffs moved for summary judgment on this claim seeking

a ruling that the Secretary had violated the ESA by failing to

designate critical habitat for the spectacled eider when he

listed it as threatened in 1993 and for the Steller’s eider when

he listed it as threatened in 1997. Plaintiffs also argued that

the Secretary violated the ESA by deciding to proceed with

leasing in the planning area without addressing impacts to the

eider critical habitat in its consultation with FWS regarding the

impacts of the proposed oil leasing program. (See Pls.’ Mem. in

Supp. at 48.)

After plaintiffs filed the motion for summary judgment, the

Secretary published final rules designating critical habitat for

the eider species and did not designate any critical habitat

within the Reserve. Plaintiffs then filed a motion to dismiss
 -40-

Count VIII without prejudice, arguing that their claims are now

moot and should be dismissed without prejudice. (See Pls.’ Mot.

to Dismiss Count VIII for Lack of Jurisdiction (“Pls.’ Mot. to

Dismiss”) at 1.)

Defendants argue that the portion of Count VIII alleging

that FWS violated the law by failing to designate critical

habitat for the spectacled eider and the Steller’s eider should

be dismissed with prejudice as moot. Defendants further argue

that FWS is entitled to summary judgment on the remaining part of

Count VIII alleging that BLM and FWS consultations on the

proposed leasing program and decision to proceed were inadequate

because they failed to consider the impacts on critical habitat.

The parties agree that plaintiffs’ claim that FWS violated

the ESA by failing to designate critical habitat for the

spectacled eider and the Steller’s eider is moot. The parties

disagree as to whether that claim should be dismissed with or

without prejudice. A dismissal on mootness grounds is without

prejudice to future suits on the merits of the same claim. See

Payne v. Panama Canal Co., 607 F.2d 155, 158 (5th Cir. 1979)

(holding that “[t]he dismissal without prejudice of the prior

actions on grounds of mootness does not serve as a final

adjudication on the merits so as to bar this action”); DiGiore v.

Ryan, 172 F.3d 454, 466 (7th Cir. 1999), overruled on other

grounds, Whetsel v. Network Property Services, LLC, 246 F.3d 897
 -41-

(7th Cir. 2001) (stating that “dismissals based on justiciability

issues should preclude only relitigation of the same

justiciability issue, but not future suits based on the merits of

the same claim”); McCarney v. Ford Motor Co., 657 F.2d 230, 234

(8th Cir. 1981) (stating that a dismissal based on concepts of

justiciability, which includes the questions of advisory

opinions, mootness and ripeness, does not preclude a second

action on the same claim if the justiciability problem can be

overcome). Accordingly, the court will grant plaintiff’s motion

to dismiss without prejudice as moot the allegation in Count VIII

that FWS violated the ESA by failing to designate critical

habitat for the spectacled eider and the Steller’s eider, and

will deny as moot plaintiffs’ and defendants’ motions for summary

judgment on this allegation.

The remaining allegation in Count VIII involves plaintiffs’

claim that the FWS’s and BLM’s consultation for the leasing

program violated the ESA by not considering the impacts on

critical habitat because it was conducted before critical habitat

was designated. Plaintiffs argue that the claim must be

dismissed as moot because there is no effective relief that can

be granted now that defendants have designated critical habitat,

none of which falls within the leasing area at issue. Defendants

argue that their motion for summary judgment should be granted

because “even if, assuming arguendo, the ‘not prudent’ critical
 -42-

habitat determination for the eiders had not been revised in a

subsequent rule, Plaintiffs[’] basic legal premise regarding the

legality and validity of the consultation and Biological Opinion

would still be incorrect.” (Defs.’ Opp’n to Pls.’ Mot. to

Dismiss at 11.) While this may be true, it does not change the

fact that the court is not permitted to issue advisory opinions.

See NRDC v. NRC, 680 F.2d 810, 814 (D.C. Cir. 1982). Because

critical habitat has been designated and it has not been

designated in the leasing area at issue, plaintiffs’ claims in

Count VIII are moot. Accordingly, plaintiffs’ motion to dismiss

the remaining portion of Count VIII without prejudice as moot

will be granted and defendants’ and plaintiffs’ motions for

summary judgment will be denied as moot.

CONCLUSION

Because defendants have complied with the requirements of

NEPA and EO 11,990, plaintiffs’ motion for partial summary

judgment on Counts II through IV and VII will be denied and

defendants’ cross-motion for partial summary judgment on those

counts will be granted. Because Count VIII is now moot,

plaintiffs’ motion to dismiss Count VIII without prejudice will

be granted and plaintiffs’ and defendants’ motions for summary

judgment on Count VIII will be denied as moot. An appropriate

order accompanies this Memorandum Opinion.
 -43-

SIGNED this 25th day of March, 2009.

/s/
RICHARD W. ROBERTS
United States District Judge