CHAPTER 10 ENVIRONMENTAL ISSUES PENDING AND FORESEEABLE, OFFSHORE ALASKA
| Jurisdiction | United States |
(May 1989)
ENVIRONMENTAL ISSUES PENDING AND FORESEEABLE, OFFSHORE ALASKA
Hughes, Thorsness, Gantz, Powell & Brundin
Anchorage, Alaska
TABLE OF CONTENTS
OCS OIL AND GAS LEASE SALE 57 (NORTON SOUND)
Current Litigation Status
Issues Presented in the Pending Litigation
Background Procedural Facts
Association of Village Council Presidents v. Watt
OCS OIL AND GAS LEASE SALE 92 (NORTH ALEUTIAN BASIN)
Current Litigation Status
Issues Presented in the Pending Litigation
Background Procedural Facts
STATE OF ALASKA OIL AND GAS LEASE SALE 55 (DEMARCATION POINT)
Current Litigation Status
Issues Presented in the Pending Litigation
Background Procedural Facts
Standard of Review Regarding a Best Interest Determination
The Parties' Arguments
1. Standing
2. The Decision to Proceed
(i) Sale 55 operating conditions
(ii) The State's "well being"
(iii) Uncertainty
3. The Porcupine Caribou Herd Dispute
4. The Subsistence Lifestyle of the Kaktovik Hunters
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5. Four Mitigating Measures Are Challenged.
6. The Cumulative Effects Issue
7. The Agreement with Canada Concerning the Porcupine Caribou Herd
8. The issue concerning the NSBCMP
9. The Federal Preemption Argument
STATE OIL & GAS LEASE SALE 50 (CAMDEN BAY)
Current Litigation Status
Issues Presented in the Pending Litigation
Background Procedural Facts
The Parties' Arguments
1. Whether the DNR Best Interest Determination for Sale 50 has a reasonable basis in the administrative record
2. The Issue Regarding Onshore Support Facilities in ANWR
3. Was the public accorded a fair opportunity to comment on the reasons and methodology used by DNR in deciding to proceed with Sale 50?
4. Did DNR Inappropriately Consider Political Factors?
5. Was DNR's Decision Consistent with the ACMP?
(i) Did DNR Violate ACMP Procedural Requirements?
(ii) DNR's Substantive Analysis Under the ACMP
6. Whether DNR Adequately Considered Cumulative Effects
THE STATE OF ALASKA'S FIVE YEAR LEASING PROGRAM (1989)
FEDERAL OCS OIL AND GAS LEASE SALES PLANNED OFFSHORE ALASKA
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WORST CASE VS. REASONABLY FORESEEABLE SIGNIFICANT ADVERSE IMPACTS IN THE NINTH CIRCUIT
ON-SHORE ENVIRONMENTAL ISSUES WHICH COULD AFFECT OFFSHORE LEASE OPERATIONS
Subsistence and Sovereignty Issues
The Coastal Policy Council as an Adjudicatory Body
Oil Discharge Contingency Plan Requirements Under State Law
CONCLUSION
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This paper is intended to survey, within ethical limitations,1 environmental issues pending offshore Alaska and to identify a few reasonably foreseeable issues on the horizon.
Currently two federal lawsuits challenge outer continental shelf ("OCS") oil and gas lease sales offshore Alaska (Sales 57 & 92) and two state cases challenge State of Alaska lease sales in state territorial waters (Sales 50 & 55). In reviewing the issues presented in those cases the reader will be exposed to the principal environmental issues which have affected the development of Alaska since its statehood in 1959. The environmental issues which were foreseeable prior to the Exxon Valdez incident on March 24 will remain, although the calculus for resolving them may have been altered.
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I
OCS OIL AND GAS LEASE SALE 57 (NORTON SOUND)
Current Litigation Status
Having been before the Ninth Circuit on three occasions and the United States Supreme Court once thus far, Sale 57 is subject to a recent remand to the district court unless the Ninth Circuit grants the federal and industry appellees' request for rehearing. Sale 57 was held on schedule on March 15, 1983. Fifty-nine tracts were leased for more than $300 million.
Issues Presented in the Pending Litigation
The issues remanded to the district court are (1) whether the plaintiff Villages of Gambell and Stebbins possess aboriginal subsistence rights in the OCS, (2) if so, whether drilling and OCS lease activities will interfere significantly with the exercise of those rights, and (3) whether the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1331 et seq., extinguishes aboriginal subsistence rights in the OCS as a matter of law.
Background Procedural Facts
The Secretary of the Interior scheduled OCS Oil and Gas Lease Sale 57 (Norton Sound) for March 15, 1983. Sale 57 lies in the relatively shallow waters of Norton Sound, south of Nome, off the western shore of Alaska. Two lawsuits were filed challenging Sale 57.
The first was brought by Alaska Legal Services Corporation on behalf of the "Tribal" Villages of Gambell and Stebbins. Gambell lies on the northwestern-most point of St. Lawrence Island, which is due west of the Sale 57 area. Stebbins is on the northeastern shore of the Yukon River Delta, bordering Norton Sound. On March 4, 1983, the Villages filed a complaint for preliminary and permanent injunctive relief in federal court in Nome. Two causes of action were asserted: that Secretary Watt had not followed the procedures allegedly required by Section 810 of the Alaska National Interest Lands Conservation Act of 1980 ("ANILCA"), 16 U.S.C. § 3120, and that the OCS lands to be leased were "encumbered by Native claims."
Section 810 of ANILCA provides in part that:
(a) In determining whether to withdraw, reserve, lease, or otherwise permit the use, occupancy, or disposition of public lands..., the head of the
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federal agency having primary jurisdiction over such lands...shall evaluate the effect of such use, occupancy, or disposition on subsistence uses and needs, the availability of other lands for the purposes sought to be achieved, and other alternatives which would reduce or eliminate the use, occupancy, or disposition of public lands needed for subsistence purposes. No such withdrawal, reservation, lease, permit, or other use, occupancy or disposition of such lands which would significantly restrict subsistence uses shall be effected until the head of such Federal agency — [satisfies certain procedural notice requirements, holds a hearing in the vicinity of the area affected, and makes certain specified determinations].
The Villages (collectively referenced as "Gambell" hereinafter) claimed that Secretary Watt did not comply with Section 810 before determining to proceed with Sale 57, noting that Interior had taken the position that Section 810 did not apply to the OCS.
The assertion by Gambell that OCS areas offshore Alaska are encumbered by Native claims was not unprecedented in Alaska. The Inupiat Community of the Arctic Slope brought an action in January 1981 in federal court in Anchorage alleging, among other claims, that the Natives of the Arctic Slope constitute a sovereign Indian tribe which once enjoyed broad aboriginal rights of sovereignty and ownership over the Arctic Slope and wide areas of the Beaufort and Chukchi Seas. Inupiat Community of the Arctic Slope v. United States, 548 F. Supp. 182 (D. Alaska 1982), aff'd on other grounds, 746 F.2d 570 (9th Cir. 1984), cert. denied, 474 U.S. 820 (1985).
The Inupiats claimed exclusive use and occupancy of the superjacent sea ice from time before human memory and asserted sovereign rights and unextinguished aboriginal title to the area lying from three to sixty-five miles offshore in the Beaufort and Chukchi Seas. Inupiat Community, 548 F. Supp. at 185. They claimed their aboriginal title establishes rights to the surface of the sea, the water column beneath it, the seabed, and the minerals lying beneath the seabed. Id. The Inupiat claim was brought against the United States and the successful bidders in the 1979 Joint Federal/State Beaufort Sea Lease Sale, seeking to quiet title, damages for trespass, imposition of a constructive trust on all revenues from past and future oil, gas, and mineral recoveries in the area, an injunction against lease activities, an injunction against further leasing on the OCS which might interfere with the Inupiats' rights, and a declaration that the OCSLA is unconstitutional as applied to the
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extent it is inconsistent with the Inupiats' rights. Id. at 184.
In October 1982 District Court Judge James Fitzgerald granted summary judgment to the defendants on a variety of grounds. Id. He ruled that claims of sovereign power over the oceans, whether made by one of the states in the Union or by a Native tribe, are inconsistent with national sovereignty and must fail under the paramountcy cases. Id. at 185-87, citing United States v. Maine, 420 U.S. 515 (1975); United States v. Texas, 339 U.S. 707 (1950); United States v. Louisiana, 339 U.S. 699 (1950); United States v. California, 332 U.S. 19 (1947). The Court added that "the federal government has consistently exercised exclusive jurisdiction and control over the adjacent waters and the seabed of the continental shelf." Inupiat Community, 548 F. Supp. at 187, citing among others, OCSLA and the Submerged Lands Act, 43 U.S.C. §§ 1301 -15 (1953).
The Inupiat Community appealed that ruling to the Ninth Circuit, which affirmed in 1984 on other grounds; namely, that any claims of aboriginal title to the OCS offshore Alaska were extinguished by Section 4 of the Alaska Native Claims Settlement Act of 1971 ("ANCSA"), 43 U.S.C. §§ 1603. Inupiat Community of the Arctic Slope v. United States, 746 F.2d 570 (9th Cir. 1984). The Inupiat Community petition for certiorari was denied in late 1985, 474 U.S. 820 (1985).
When Gambell brought its challenge to Sale 57 in the spring of 1983, it was aware of Judge Fitzgerald's district court ruling against aboriginal title claims to the OCS in Inupiat Community, and filed more tempered claims than had the Inupiats. Gambell claimed in paragraph 11 of its complaint that the:
Members of the Plaintiff organizations, and their lineal ancestors, have used and occupied substantial portions of the lands to be conveyed in the Norton Sound lease...
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