NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATURAL RESOURCES DEFENSE No. 19-35006
COUNCIL; et al.,
D.C. No. 3:18-cv-00031-SLG
Plaintiffs-Appellants,
v. MEMORANDUM*
DAVID BERNHARDT, in his official
capacity as Acting Secretary of the Interior;
et al.,
Defendants-Appellees,
CONOCOPHILLIPS ALASKA, INC.,
Intervenor-Defendant-
Appellee.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Argued and Submitted February 7, 2020
Seattle, Washington
Before: M. SMITH and N.R. SMITH, Circuit Judges, and TUNHEIM,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John R. Tunheim, United States Chief District Judge
for the District of Minnesota, sitting by designation.
Natural Resources Defense Council and other environmental organizations
(Plaintiffs) appeal the district court’s grant of summary judgment in favor of the
Bureau of Land Management (BLM) and related Federal Defendants, as well as
Intervenor-Defendant ConocoPhillips Alaska, Inc. (collectively, Defendants).
Plaintiffs had claimed that BLM failed to comply with the National Environmental
Policy Act (NEPA), 42 U.S.C. § 4332, for its 2016 and 2017 oil and gas lease sales
in the National Petroleum Reserve-Alaska (the Reserve). Plaintiffs allege that
BLM failed to take a “hard look” at the potential greenhouse gas emissions that
would result from the sales and failed to develop or analyze alternative lease sale
configurations. See Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462
U.S. 87, 97 (1983). The district court found Plaintiffs’ claims time barred by the
Naval Petroleum Reserves Production Act (NPRPA), 42 U.S.C. § 6506a(n)(1).
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
We review the district court’s summary judgment decision de novo. N.
Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 975 (9th Cir. 2006). Because the
parties are familiar with the facts, we do not recount them here. This case arises
from the same facts as our decision in Northern Alaska Environmental Center v.
U.S. Department of the Interior (NAEC), No. 19-35008, which we also file today.
Our resolution of the issues in NAEC resolves most of the issues here as well.
1. We reject Plaintiffs’ theory that BLM did not conduct any NEPA
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analysis of the lease sales at all. For the reasons discussed in NAEC, we conclude
that BLM’s 2012 Environmental Impact Statement (EIS), prepared in combination
with its Integrated Activity Plan (IAP) governing management of all BLM-
managed lands in the Reserve, was the EIS for future lease sales. See Slip Op. at
32–36.
Defendants argue that the similarity between Plaintiffs’ comments on the
draft 2012 EIS and their present complaint belies their argument that the 2012 EIS
did not cover future lease sales. We agree that this similarity may undermine
Plaintiffs’ theory inasmuch as it suggests that Plaintiffs understood the 2012 EIS to
cover future lease sales but simply thought it did so inadequately. However, we do
not find Plaintiffs’ 2012 comments entirely dispositive of the matter, because we
see no reason in principle why Plaintiffs could not allege the same defect in
different NEPA analyses for different actions. See, e.g., Kern v. BLM, 284 F.3d
1062, 1067, 1072–73, 1077–78 (9th Cir. 2002) (holding that EIS for Coos Bay
regional management plan and subsequent tiered Environmental Assessment for
proposed timber sales were both inadequate due to their failure to consider impacts
on the Port Orford Cedar and a particular root fungus to which the Cedar is
susceptible). Put another way, it is not the alleged deficiency that determines
whether Plaintiffs’ complaint necessarily challenges a previous EIS. Rather, we
look to the action for which Plaintiffs allege deficient NEPA compliance, and
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whether the previous EIS included that action within its defined scope. See NAEC,
Slip Op. at 29–32.
We reject Plaintiffs’ argument that the 2012 EIS could not have been the
NEPA analysis for the 2016 and 2017 lease sales because it did not assess the
climate-change impacts of the 2016 and 2017 lease sales. As with the NAEC
plaintiffs’ arguments regarding the alleged failure of the 2012 EIS to analyze site-
specific impacts, see Slip Op. at 16–23, we are not persuaded that BLM’s
discussion of climate-change impacts differed so substantially (if at all) from what
NEPA required for individual lease sales as to preclude the conclusion that the
lease sales were within the scope of actions considered in the 2012 EIS.
Plaintiffs also argue that the 2012 EIS could not have been the NEPA
analysis for the 2016 and 2017 lease sales because it did not assess alternatives for
the 2016 and 2017 lease sales. We rejected this same argument in NAEC, finding
it a criticism better directed at adequacy than scope. See Slip Op. at 34–35 (citing
Mayo v. Reynolds, 875 F.3d 11, 20–22 (D.C. Cir. 2017)).
More fundamentally, Plaintiffs argue that the 2012 EIS could not have been
the NEPA analysis for the 2016 and 2017 lease sales because it was prepared for
the management plan stage of oil and gas development, as opposed to the lease sale
stage. We reject this argument for the same reasons we rejected the NAEC
plaintiffs’ argument that a programmatic EIS necessarily cannot be a site-specific
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EIS. See Slip Op. at 18–20 (concluding that nothing in NEPA precludes an agency
from conducting both levels of analysis in the same document, however styled).
Nor do BLM’s NPRPA regulations requiring it to “complet[e] . . . the required
[NEPA] environmental analysis” before “select[ing] tracts to be offered for sale,”
43 C.F.R. § 3131.2(b), necessarily require a new NEPA analysis at the lease sale
stage, distinct from that prepared at the management plan stage.
2. Because the 2012 EIS was the EIS for future lease sales, BLM’s “hard
look” responsibility under NEPA was to take a hard look at environmental
consequences and reasonable alternatives in the 2012 EIS. See 40 C.F.R. § 1502.1;
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). To the
extent that Plaintiffs’ hard look claims address information or circumstances
knowable at the time of the 2012 EIS, they are therefore time barred by the
NPRPA statute of limitations. See 42 U.S.C. § 6506a(n)(1) (barring “judicial
review of the adequacy of” an EIS concerning oil and gas leasing in the Reserve
outside of a 60-day window); Turtle Island Restoration Network v. U.S. Dep’t of
Commerce, 438 F.3d 937, 944–45 (9th Cir. 2006) (quoting Cal. Save Our Streams
Council, Inc. v. Yeutter, 887 F.2d 908, 911 (9th Cir. 1989)) (plaintiffs cannot,
“through careful pleading,” avoid an otherwise applicable statute of limitations).
Although we need not resolve exactly which aspects of Plaintiffs’ complaint are so
barred, we observe that, to the extent Plaintiffs’ comments on the draft 2012 EIS
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made the same arguments as Plaintiffs’ present complaint, it is likely that the
relevant information and circumstances were as knowable then as they are now.
We reject Plaintiffs’ arguments that our application of the NPRPA statute of
limitations effectively forecloses judicial review of lease sale NEPA compliance
because Plaintiff’s present challenge would not have been ripe during the 60-day
window. To the contrary, a NEPA challenge to an EIS is ripe when the allegedly
inadequate EIS is promulgated. Kern, 284 F.3d at 1070–71. Plaintiffs need not
wait to challenge a specific project, because their asserted injury is procedural. Id.;
cf. Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1355 (9th Cir.
1994) (holding that plaintiffs had standing to challenge an EIS for a regionwide
vegetation management policy governing the use of herbicides, even where no site-
specific decision to use herbicides had yet been made). Because future lease sales
were within the defined scope of the 2012 EIS, see NAEC, Slip Op. at 32–36,
Plaintiffs could have challenged the adequacy of the 2012 EIS for future lease sales
within the 60-day window.
Our conclusion does not inoculate from judicial review any federal action
for which the agency invokes a previous EIS. As we explain in NAEC, a
subsequent federal action is protected by the statute of limitations only if the
previous EIS gave fair notice that its scope included the subsequent action. See
Slip Op. at 29–32. Furthermore, Defendants concede that the statute of limitations
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would not bar a supplementation challenge based on significant new information or
changed circumstances.
3. Having completed the 2012 EIS, BLM’s only remaining hard look
obligation with respect to subsequent lease sales was to evaluate whether new
information or circumstances necessitated supplementation. See 40 C.F.R.
§ 1502.9(c). To the extent Plaintiffs’ hard look claims address new information or
circumstances, then, they have waived these claims by failing to preserve a
supplementation challenge.
We disagree with Intervenor’s argument that, because Plaintiffs’ failed to
appeal the district court’s alternative holding that they waived supplementation, we
should summarily affirm without reaching the merits. See, e.g., Rivera v. Ariz.
Attorney Gen., 468 F. App’x 807, 808 (9th Cir. 2012). Plaintiffs sufficiently attack
the logic underlying the relevance of supplementation. Had we agreed with
Plaintiffs that the 2012 EIS was not an EIS for the 2016 and 2017 lease sales,
Plaintiffs’ waiver of a supplementation claim would not have been a sufficient
basis on which to support the judgment. Rather, the proper inquiry would have
been whether BLM was required to prepare a tiered EA or EIS. See NAEC, Slip
Op. at 34.
4. Because we conclude that Plaintiffs’ claims are time barred in part by
the NPRPA statute of limitations and waived in the remainder, we decline to
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address Intervenor’s argument that the Mineral Leasing Act statute of limitations,
30 U.S.C. § 226-2, also bars Plaintiffs’ challenge to the 2016 lease sale.
AFFIRMED.
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