Native Village of Nuiqsut v. Bureau of Land Management, No. 20-35224 (9th Cir. 2021)
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The Bureau of Land Management (BLM) published the 2012 Integrated Action Plan/Environmental Impact Statement (IAP/EIS) for the Petroleum Reserve-Alaska. In 2014, BLM granted ConocoPhillips permission to construct a drill pad in the Greater Moose Tooth (GMT) Unit within the Reserve and issued a GMT supplemental EIS, relying on the 2012 IAP/EIS. In 2018, BLM granted ConocoPhillips permission to construct another GMT drill pad, issuing a second GMT supplemental EIS. In 2018, ConocoPhillips applied to drill in another Unit. BLM published an environmental assessment that purportedly incorporated the 2012 IAP/EIS and the two GMT supplemental EISs. BLM did not issue an EIS but found no new significant impact. ConocoPhillips completed the program in April 2019. In March 2019, objectors sued, citing the National Environmental Policy Act.
The Ninth Circuit concluded that the case was moot because neither court could grant any relief. The only lasting physical features of the drilling were capped wells; there was no indication that ConocoPhillips could undo the drilling of those wells. The “capable of repetition, yet evading review” exception to mootness did not apply. Although a case generally will not be moot when the environmental report at issue will be used by the agency in approving a future project, the legal landscape has changed. The Council of Environmental Quality has issued new NEPA regulations. BLM issued a 2020 IAP/EIS for the Reserve, Plaintiffs have not shown a “reasonable expectation” that they will be subjected to an EA tiering to the 2012 IAP/EIS again.
Court Description: Environmental Law / Mootness. The panel vacated as moot the district court’s judgment in an action challenging the Bureau of Land Management’s (“BLM”) approval of a winter drilling exploration program for ConocoPhillips Alaska, Inc. in the National Petroleum Reserve-Alaska. In November 2012, the BLM published the 2012 Integrated Action Plan/Environmental Impact Statement (“IAP/EIS”), a document that analyzed environmental impacts in much of the Petroleum Reserve. In 2014, ConocoPhillips sought permission to construct a drill pad in the Greater Mooses Tooth (“GMT”) Unit located within the Petroleum Reserve. The BLM approved the request, and issued a GMT supplemental EIS that relied on the analysis in the 2012 IAP/EIS. In 2018, ConocoPhillips sought permission to construct another drill pad in the GMT Unit. The BLM approved the request and issued a second GMT supplemental EIS, which also referenced the 2012 IAP/EIS. In 2018, ConocoPhillips applied to drill in the Bear Tooth Unit, and the BLM published an environmental assessment (“EA”) and did not subsequently issue an EIS. This 2018 EA purportedly incorporated the 2012 IAP/EIS and the two GMT supplemental EISs. BLM issued a finding of no new significant impact for ConocoPhillips’s 2018-2019 winter exploration program. ConocoPhillips completed the program on April 28. 2019. On March 1, 2019, before 4 NATIVE VILLAGE OF NUIQSUT V. BLM completion of the program, plaintiffs brought this action alleging violations of the Administrative Procedure Act, the National Environmental Policy Act (“NEPA”), and the Alaska National Interest Lands Conservation Act. The district court concluded the action was not moot, and granted defendants’ motion for summary judgment on each of the substantive claims. The panel held that the case was moot because neither the district court nor this court could give any relief to plaintiffs, where ConocoPhillips fully completed the operations of the 2018-2019 winter exploration program, the only lasting physical features of the drilling were capped wells, and there was no indication that ConocoPhillips could undo the drilling of those wells. Plaintiffs contend that the “capable of repetition, yet evading review” exception to mootness applied. This exception has two requirements: (1) the duration of the challenged action is too short to allow full litigation before it ceases or expires, and (2) there is a reasonable expectation that the plaintiffs will be subjected to the challenged action again. The plaintiffs’ challenge to the 2018 environmental assessment met the durational requirement where the 2018- 2019 winter exploration program lasted only five months. The panel next considered the “capable of repetition” prong of the mootness exception. The panel noted that generally a case will not be moot when the environmental report at issue will be used by the agency in approving a future project. This case, however, is more complicated. While the 2018 EA was confined solely to the 2018-2019 winter exploration program, and the BLM would not use that NATIVE VILLAGE OF NUIQSUT V. BLM 5 particular EA in approving a future drilling exploration request, the 2018 EA relied on the 2012 IAP/EIS, and the two GMT supplemental EISs. At the time of the district court decision, the BLM’s continued reliance on the 2012 IAP/EIS, and the two GMT supplemental EISs in future EAs meant that the case was “capable of repetition, yet evading review.” The panel held, however, that new circumstances have arisen subsequent to the district court’s decision, and the case is now moot. First, the legal landscape has changed. The Council of Environmental Quality issued new regulations implementing NEPA (“2020 Rule”), which supplanted the regulations at the time plaintiffs brought their suit. In January 2021, the President signed Executive Order 13990 directing review of the 2020 Rule, and it is unclear whether future challenges would be adjudicated pursuant to the old or the new regulations. The panel held that the new regulations would render the case moot because there was no reasonable expectation that the plaintiffs would be subjected to the challenged action again. Second, in 2020, the BLM issued a new IAP/EIS for the Petroleum Reserve, and plaintiffs have not shown a “reasonable expectation” that they will be subjected to an EA tiering to the 2012 IAP/EIS again. Third, BLM represents that it is continuing to tier environmental reports to the second GMT supplemental EIS, which would likely allow plaintiffs to contend that their claims were “capable of repetition.” The panel held, however, that BLM could not tier to either GMT supplemental EIS for a document similar to the 2018 EA because they cover entirely separate development-stage projects and do not address exploration activities. Whether BLM applies the old regulations, or the new regulations, plaintiffs’ particular claims no longer fit into the “capable of repetition, yet evading review” exception to mootness. 6 NATIVE VILLAGE OF NUIQSUT V. BLM Fourth, ConocoPhillips states that it does not plan to conduct additional winter exploration in the area for the foreseeable future. Standing alone, the declaration did not satisfy the heavy burden to show that voluntary cessation mooted the case. The panel held, however, that the declaration must be considered when combined with the other circumstances noted above. The panel concluded that this was a unique case where mootness was not based on a single factor, but instead on a multitude of new circumstances, which, together, showed that the “capable of repetition, yet evading review” mootness exception did not apply. Because the case is moot, the district court and the Ninth Circuit are without jurisdiction to decide the case. The panel held that it did not have jurisdiction to consider the merits of plaintiffs’ claims, vacated the district court’s decision, and remanded with instructions to dismiss the case as moot.
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