JEAN E. WILLIAMSActing Assistant Attorney General
United States Department of JusticeEnvironment and Natural Resources Division
RICKEY TURNER
Senior Trial Attorney, Wildlife and Marine Resources Section
999 18th Street, South Terrace, Suite 370
Denver, CO 80202(303) 844-1373
rickey.turner@usdoj.gov
CAITLIN CIPICCHIO
Trial Attorney, Natural Resources Section
P.O. Box 7611
Washington, D.C. 20044(202) 305-0503
caitlin.cipicchio@usdoj.gov
LAURA GLICKMAN
Trial Attorney, Environmental Defense Section
150 M Street NE
Washington, D.C. 20002(202) 514-6390
laura.glickman@usdoj.gov
Attorneys for Defendants
IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF ALASKA
SOVEREIGN IÑUPIAT FOR A LIVINGARCTIC, et al.,Plaintiffs,
Case No. 3:20-cv-00290-SLG
v.
BUREAU OF LAND MANAGEMENT, etal.,
Federal Defendants,
andSovereign Iñupiat for a Living Arctic et al. v. BLM et al.
DEFS.’ BRIEF IN OPPOSITION

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CONOCOPHILLIPS ALASKA, INC. et al.,Intervenor-Defendants.
CENTER FOR BIOLOGICAL
DIVERSITY, et al.,Plaintiffs,v.

Case No. 3:20-cv-00308-SLG

BUREAU OF LAND MANAGEMENT, etal.,
Federal Defendants,
and
CONOCOPHILLIPS ALASKA, INC. et al.,Intervenor-Defendants.
FEDERAL DEFENDANTS’ COMBINED BRIEF IN OPPOSITIONPURSUANT TO LOCAL RULE 16.3(c)(2)

Sovereign Iñupiat for a Living Arctic et al. v. BLM et al.
DEFS.’ BRIEF IN OPPOSITION

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TABLE OF CONTENTSINTRODUCTION ............................................................................................................... 1
BACKGROUND ................................................................................................................. 2I.

II.

Legal Background ......................................................................................... 2A.

Clean Water Act ................................................................................. 2

B.

Endangered Species Act ..................................................................... 3

C.

Marine Mammal Protection Act ......................................................... 4

D.

National Environmental Policy Act ................................................... 6

Factual Background ....................................................................................... 7

LEGAL STANDARDS ..................................................................................................... 10
ARGUMENT..................................................................................................................... 11I.

BLM and the Corps Satisfied the Requirements of NEPA ......................... 11A.

Plaintiffs’ NEPA Claims Are Barred by the NPRPA’s Statuteof Limitations ................................................................................... 11

B.

BLMs’ Greenhouse Gas Emissions Analysis Satisfies NEPA ........ 17C.

BLM Considered a Reasonable Range of Alternatives under
NEPA ............................................................................................... 21

D.

Defendants Took the Requisite Hard Look at the Impacts of theWillow Project on the Environment ................................................. 25
1.

BLM and the Corps Had the Information Necessary to
Take a Hard Look at the Impacts of the Project ................... 25

2.

BLM Adequately Considered the Impacts of the Project
on Caribou ............................................................................. 29

3.

The EIS Contains Sufficient Information Regarding
Reasonably Foreseeable Future Actions to Satisfy
NEPA .................................................................................... 31

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4.
II.

III.

The Corps’ Issuance of a Section 404 Permit Here Was Reasonable
and Consistent with the CWA ..................................................................... 35
A.

Ample Evidence Supports the Corps’ Conclusion that the
Project Will Not Cause Significant Degradation ............................. 36

B.

The Corps Appropriately Determined the Need forCompensatory Mitigation that Will Offset “Unavoidable
Impacts” ........................................................................................... 39

The Service’s Analysis Satisfies the ESA ................................................... 41
A.

B.

IV.

The EIS Adequately Analyzes the Project’s Cumulative
Effects on Fish and Polar Bears ............................................ 34

The Service’s ESA Analysis Was Consistent with the ESA andReasonable. ...................................................................................... 41
1.

BLM’s proposed action appropriately defined thecontours of the project. .......................................................... 42

2.

The Service’s Section 7 jeopardy analysis on polar bears
complied with the ESA. ........................................................ 43

3.

The Service conducted an appropriate Section 7 adverse
modification analysis of the impacts on polar bear
critical habitat. ....................................................................... 45

4.

The Service’s Incidental Take Statement complies with
the ESA ................................................................................. 47

The Service’s ESA Analysis Is Reasonable and Plaintiffs Offer
Nothing to Rebut It. .......................................................................... 48
1.

The Service’s Section 7 decisions did not rely on any
MMPA protections. ............................................................... 48

2.

The Service properly analyzed and quantified possible
ESA take................................................................................ 55

The Appropriate Remedy is Remand Without Vacatur .............................. 58

CONCLUSION ................................................................................................................. 59

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TABLE OF AUTHORITIES
Cases
Alaska Env’t. Ctr. v. Kempthorne,
457 F.3d 969 (9th Cir. 2006) ......................................................................................... 14
Ass’n of Pub. Agency Customers, Inc. v. Bonneville Power Admin.,
126 F.3d 1158 (9th Cir. 1997) ....................................................................................... 31
Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc.,
462 U.S. 87 (1983) ......................................................................................................... 11
California v. Block,
690 F.2d 753 (9th Cir. 1982) ........................................................................................... 6
Chilkat Indian Vill. of Klukwan v. Bureau of Land Mgmt.,
399 F. Supp. 3d 888 (D. Alaska 2019) .................................................................... 33, 35
City of Sausalito v. O’Neill,
386 F.3d 1186 (9th Cir. 2004) ....................................................................................... 10
Conner v Burford,
848 F.2d 1441 (9th Cir. 1988) ....................................................................................... 13
Ctr. for Biological Diversity v. Bernhardt (Liberty),
982 F.3d 723 (9th Cir. 2020) ................................................................. 17, 18, 19, 21, 48
Ctr. for Biological Diversity v. Salazar,
695 F.3d 893 (2012)....................................................................................................... 50
Headwaters, Inc. v. Bureau of Land Mgmt., Medford Dist.,
914 F.2d 1174 (9th Cir. 1990) ....................................................................................... 22
Hoosier Env’t Council v. U.S. Army Corps of Eng’rs,
722 F.3d 1053 (7th Cir. 2013) ....................................................................................... 37
Idaho Farm Bureau Fed’n v. Babbitt,
58 F.3d 1392 (9th Cir. 1995) ......................................................................................... 59
Kern v. Bureau of Land Mgmt.,
284 F.3d 1062 (9th Cir. 2002) ....................................................................................... 33
Kleppe v. Sierra Club,
427 U.S. 390 (1976) ......................................................................................................... 7
Lands Council v. McNair,
537 F.3d 981 (9th Cir. 2008) ......................................................................................... 10
League of Wilderness Defs.-Blue Mountains Biodiversity Project v. U.S. Forest Serv.,
689 F.3d 1060 (9th Cir. 2012) ....................................................................................... 22
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Love v. Thomas,
858 F.2d 1347 (9th Cir. 1988) ....................................................................................... 12
Marble Mountain Audubon Soc’y v. Rice,
914 F.2d 179 (9th Cir. 1990) ......................................................................................... 12
Moapa Band of Paiute Indians v. Dep’t of Interior,
747 F.2d 563 (9th Cir. 1984) ......................................................................................... 12
Morongo Band of Mission Indians v. FAA,
161 F.3d 569 (9th Cir. 1998) ................................................................................... 21, 22
Motor Vehicle Mfrs. Ass’n., v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) ................................................................................................... 11, 18
N. Alaska Env’t. Ctr. v. Kempthorne,
457 F.3d 969 (9th Cir. 2006) ........................................................................................... 7
Nat. Res. Def. Council, Inc. v. EPA,
822 F.2d 104 (D.C. Cir. 1987) ......................................................................................... 6
Nat’l Wildlife Fed’n v. Espy,
45 F.3d 1337 (9th Cir. 1995) ......................................................................................... 59
Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Service,
422 F.3d 782 (9th Cir. 2005) ......................................................................................... 59
Native Ecosystems Council v. Dombeck,
304 F.3d 886 (9th Cir. 2002) ......................................................................................... 10
Nw. Env’t Def. Ctr. v. Bonneville Power Admin.,117 F.3d 1520 (9th Cir. 1997) ....................................................................................... 22
Robertson v. Methow Valley Citizens Council,
490 U.S. 332 (1989) ................................................................................................... 6, 27
Rock Creek All. v. U.S. Forest Serv.,
703 F. Supp. 2d 1152 (D. Mont. 2010) .......................................................................... 35
Sierra Club v. Fed. Energy Regulatory Comm’n,
867 F.3d 1357 (D.C. Cir. 2017) ..................................................................................... 19
Smith v. U.S. Forest Serv.,
33 F.3d 1072 (9th Cir. 1994) ......................................................................................... 58
Sovereign Iñupiat for a Living Arctic v. Bureau of Land Mgmt.,
Nos. 3:20-cv-290-SLG, 3:20-cv-308-SLG, 2021 WL 343925 (D. Alaska Feb. 1, 2021)...................................................................................................................... 11, 14, 15, 16
Westlands Water Dist. v. U.S. Dep’t of Interior,
Sovereign Iñupiat for a Living Arctic et al. v. BLM et al.
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376 F.3d 853 (9th Cir. 2004) ............................................................................. 19, 21, 22
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) ........................................................................................................... 10
Statutes
16 U.S.C. § 1371(a)(5)(A) ................................................................................................... 5
16 U.S.C. § 1531(b) ............................................................................................................. 3
16 U.S.C. § 1532 (19) .................................................................................................. 47, 55
16 U.S.C. § 1536(a)(2) ........................................................................................................ 4
16 U.S.C. § 1536(b)(4) ........................................................................................................ 4
16 U.S.C. § 1536(b)(4)(C) ................................................................................................... 5
16 U.S.C. § 1536(o)(2) ........................................................................................................ 433 U.S.C. § 1251(a) ............................................................................................................. 2
33 U.S.C. § 1311(a) ............................................................................................................. 2
33 U.S.C. § 1344 ................................................................................................................. 2
33 U.S.C. § 1344(b)(1) ........................................................................................................ 2
33 U.S.C. § 1344(h)(1)(A)(i) ............................................................................................... 2
42 U.S.C. § 4332(2)(C) ....................................................................................................... 6
42 U.S.C. § 6506a .............................................................................................................. 1642 U.S.C. § 6506a(n)(1) .............................................................................................. 11, 16
43 U.S.C. § 1337(b)(4) ...................................................................................................... 21
5 U.S.C. § 706(2) ............................................................................................................... 10
5 U.S.C. §§ 701-706 .......................................................................................................... 10
Pub. L. No. 94-258, 90 Stat. 303 (1976) ............................................................................. 7
Pub. L. No. 96-514 94 Stat. 2957 (1980) ............................................................................ 7
Regulations
33 C.F.R. § 320.4(r)(2) ........................................................................................................ 3
33 C.F.R. § 332.3(a)(1)........................................................................................................ 3
33 C.F.R. pts. 323, 325 ........................................................................................................ 2
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40 C.F.R. § 1501.3 ............................................................................................................... 6
40 C.F.R. § 1502.14(a) (2019) .......................................................................................... 21
40 C.F.R. § 1502.21 (2019) ............................................................................................... 33
40 C.F.R. § 1502.9(c)(1)(i) (2019) .................................................................................... 29
40 C.F.R. § 1506.3(c) (2019) ............................................................................................ 28
40 C.F.R. § 230.10(a) .......................................................................................................... 2
40 C.F.R. § 230.10(c) .......................................................................................................... 2
40 C.F.R. § 230.10(d) .......................................................................................................... 2
40 C.F.R. § 230.91 ............................................................................................................... 2
40 C.F.R. § 230.91(a)(1)...................................................................................................... 3
40 C.F.R. § 230.93(a)(1)...................................................................................................... 3
40 C.F.R. pt. 230.................................................................................................................. 2
40 C.F.R. pts. 1500-08 (2019) ............................................................................................. 6
43 C.F.R. § 3101.1-2 ......................................................................................................... 25
43 C.F.R. § 3130.2 ............................................................................................................. 1750 C.F.R. § 18.27 ................................................................................................................. 550 C.F.R. § 18.27(b) ............................................................................................................ 550 C.F.R. § 18.27(f) ............................................................................................................. 550 C.F.R. § 402.02 ............................................................................................................. 45
50 C.F.R. § 402.14 ............................................................................................................... 550 C.F.R. § 402.14(g) .......................................................................................................... 450 C.F.R. § 402.14(g)(8) ......................................................................................... 4, 42, 54
50 C.F.R. § 402.14(h)(1)(iii) ............................................................................................... 450 C.F.R. § 402.14(i)(1) ...................................................................................................... 450 C.F.R. § 402.16 ............................................................................................................. 47
50 C.F.R. §17.3 ............................................................................................................ 47, 56
50 C.F.R. pt. 228.................................................................................................................. 550 C.F.R. pt. 402.................................................................................................................. 4
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viOther Authorities
126 Cong. Rec. S29 (daily ed. Nov. 13, 1980) .................................................................. 16
126 Cong. Rec. S31 (daily ed. Dec. 1, 1980) .................................................................... 17
43 Fed. Reg. 55,978-01 (Nov. 29, 1978) ............................................................................. 6
46 Fed. Reg. 37,725 (July 22, 1981) ................................................................................. 25
51 Fed. Reg. 15,618-01 (Apr. 25, 1986) ............................................................................. 6
54 Fed. Reg. 40,338-01 (Sept. 29, 1989)............................................................................. 5
54 Fed. Reg. 40,346 (Sept. 29, 1989) .................................................................................. 5
83 Fed. Reg. 38,725 (Aug. 7. 2018) .................................................................................... 8
84 Fed. Reg. 44,976 (Aug. 27, 2019) ............................................................................ 4, 54
84 Fed. Reg. 45,002 (Aug. 27, 2019) ............................................................................ 4, 54
84 Fed. Reg. 45,801-01 (Aug. 30, 2019) ............................................................................. 985 Fed. Reg. 49,677-01 (Aug. 14, 2020) ............................................................................. 9
H. Rep. No. 96-1147 (1980) .............................................................................................. 17
S. Rep. No. 96-985 (1980) ................................................................................................. 17

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INTRODUCTION
The Willow Master Development Plan Project (“Willow Project”) allows for theconstruction and operation of infrastructure needed to develop certain federal oil and gas
resources under leaseholds in the National Petroleum Reserve in Alaska (“NPR-A”).
These leaseholds exist because Congress directed the Department of the Interior to
conduct an oil and gas leasing program in the NPR-A. To that end, the Bureau of Land
Management (“BLM”) established which lands in the NPR-A would be open for leasing,and then held lease sales and issued leases, none of which are challenged here.
ConocoPhillips Alaska, Inc. (“Conoco”)—the lessee in this case—seeks to develop the
Willow Project in order to extract oil and gas pursuant to federal law and its valid leaserights.
The Willow Project was approved after years of analysis, consultation withcooperating agencies including the U.S. Fish and Wildlife Service (“the Service”) and the
U.S. Army Corps of Engineers (“the Corps”), significant public input, and the completionof an environmental impact statement (“EIS”) and biological opinion (“BiOp”).
Plaintiffs seek to stop the extraction of resources from the Petroleum Reserve by cherrypicking the records of BLM, the Service, and the Corps, to suggest that the federal
agencies’ analyses violated the National Environmental Policy Act (“NEPA”), Clean
Water Act (“CWA”), and Endangered Species Act (“ESA”). To the contrary, Federal
Defendants complied with the requirements of these statutes and other applicable legal
requirements, and Plaintiffs’ claims should be rejected.

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BACKGROUND
I.

Legal Background
A. Clean Water Act
The Clean Water Act is designed “to restore and maintain the chemical, physical,

and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Consistent withthis purpose, the CWA prohibits the discharge of pollutants, including dredged or fillmaterial, from a point source into navigable waters, unless authorized by a CWA permit.
33 U.S.C. § 1311(a). CWA Section 404 gives the Corps authority to permit discharges ofdredged and fill material into navigable waters, including wetlands. 33 U.S.C. § 1344.
The Corps may issue individual permits on a case-by-case basis after extensive sitespecific documentation and review, an opportunity for public hearing, a public interest
review, and a formal determination. See generally 33 C.F.R. pts. 323, 325.
Regulations known as the Section 404(b)(1) Guidelines (the “Guidelines”) govern
the Corps’ evaluation of permit applications. 33 U.S.C. § 1344(b)(1), (h)(1)(A)(i); see 40
C.F.R. pt. 230. In evaluating a permit application under the Guidelines, the Corps
undertakes a multi-step process. First, the Corps determines if impacts to wetlands can
be avoided by considering offsite alternatives. See 40 C.F.R. § 230.10(a). Second, theCorps determines whether the project would cause “significant degradation” to waters of
the United States. See id. § 230.10(c). Third, if impacts cannot be avoided, the Corps
attempts to minimize those impacts. See id. § 230.10(d). Finally, the Corps considers
how any unavoidable impacts can be mitigated through compensatory mitigation. See id.
§ 230.91.
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The Guidelines require compensatory mitigation to offset “unavoidable impacts”
to waters of the United States caused by work authorized by Section 404 permits. 40
C.F.R. § 230.91(a)(1). Compensatory mitigation is required for “significant resource
losses which are specifically identifiable, reasonably likely to occur, and of importance tothe human or aquatic environment.” 33 C.F.R. § 320.4(r)(2). The permit applicant is
responsible for proposing an appropriate compensatory mitigation option. Id. §332.3(a)(1). When evaluating the proposed compensatory mitigation option, the Corps
determines which option is environmentally preferable based on an assessment of anumber of factors, including: (1) the likelihood for ecological success and sustainability;(2) the location of the compensation site relative to the impact site and the significancewithin the watershed; and (3) the costs of the compensatory mitigation project. 40 C.F.R.
§ 230.93(a)(1); see also Memorandum of Agreement Between the Department of the
Army and the Environmental Protection Agency Concerning Mitigation Sequence for
Wetlands in Alaska Under Section 404 of the Clean Water Act at 2–3 (June 15, 2018)(outlining specific principles for mitigation projects in Alaska)(https://www.epa.gov/sites/production/files/201806/documents/epa_army_moa_alaska_mitigation_cwa_404_06-15-2018_0.pdf).
B. Endangered Species Act
Congress enacted the ESA to protect and conserve endangered and threatened
species and the ecosystems on which they depend. 16 U.S.C. § 1531(b). “Each Federal
agency shall, in consultation with and with the assistance of the Secretary, insure that any
action authorized, funded, or carried out by such agency . . . is not likely to jeopardize theSovereign Iñupiat for a Living Arctic et al. v. BLM et al.
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continued existence of any endangered species or threatened species or result in thedestruction or adverse modification of [designated critical] habitat . . . .” 16 U.S.C.
§ 1536(a)(2); see 50 C.F.R. pt. 402.1
Formal consultation, which was the process followed here, culminates in abiological opinion (“BiOp”), which includes a “detailed discussion of the effects of theaction on listed species or critical habitat.” 50 C.F.R. § 402.14(h)(1)(iii). The BiOp
assesses the likelihood of the proposed action resulting in jeopardy to a listed species ordestruction or adverse modification to designated critical habitat. 50 C.F.R. § 402.14(g).
If an action is not likely to result in jeopardy or destruction or adverse modification ofcritical habitat, but is reasonably likely to result in “take” incidental to the proposed
action, then the Service includes an incidental take statement in the BiOp. 16 U.S.C. §1536(b)(4); 50 C.F.R. § 402.14(i)(1). If the action agency implements the project as
proposed and complies with the terms and conditions of the incidental take statement,
ESA Section 7(o)(2) exempts the specified level of take from the ESA Section 9 takeprohibition. 16 U.S.C. § 1536(o)(2).
C. Marine Mammal Protection Act
The Marine Mammal Protection Act (“MMPA”) prohibits the take of marine

1

On October 28, 2019, new implementing regulations for the ESA went into effectregarding how the Service accounts for mitigation measures included in a proposed
action. See 50 C.F.R. § 402.14(g)(8); Regulations for Interagency Cooperation, 84 Fed.
Reg. 44,976-01, 45,002-07 (Aug. 27, 2019). These revised regulations govern theService’s Section 7 analysis at issue in this case.
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mammals, but its scope is narrower and its procedures distinct from those of Sections 7
and 9 of the ESA. “Take” in the MMPA is similar to, but not the same as “take” under
Section 9 of the ESA.
The MMPA allows the Service to permit the incidental take of “small numbers” ofmarine mammals pursuant to a specified activity for a limited period. The total incidental
take must have a “negligible impact” on the species or stock and cannot have an“unmitigable adverse impact” on the availability of the species or stock for specified
subsistence uses. 16 U.S.C. § 1371(a)(5)(A)(i)(I); see also 50 C.F.R. § 18.27(b). If theincidental take meets these requirements, the Service will upon request prescribe
regulations setting forth permissible methods of taking the species in question and othermeans of effecting the least adverse impact possible on the species and its habitat. See 50
C.F.R. § 18.27(b). Proposed regulations are subject to public notice-and-comment. 16
U.S.C. § 1371(a)(5)(A)(I). Once the regulations are finalized and promulgated, theService issues individual letters of authorization to authorize the incidental take from
activities conducted pursuant to established regulations. 50 C.F.R. § 18.27(f).
With respect to marine mammals, the Service cannot issue an incidental takestatement authorizing the take of an endangered or threatened species under the ESA
until the take has been authorized under the MMPA. 16 U.S.C. § 1536(b)(4)(C); see also
Incidental Take of Endangered, Threatened, and Other Depleted Marine Mammals, 54
Fed. Reg. 40,338-01, 40,346 (Sept. 29, 1989), codified at 50 C.F.R. §§ 18.27, 402.14, and
50 C.F.R. pt. 228.

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D. National Environmental Policy Act
NEPA serves the dual purpose of informing agency decision-makers of thesignificant environmental effects of proposed major federal actions and ensuring that
relevant information is made available to members of the public so that they “may also
play a role in both the decisionmaking process and the implementation of that decision.”
See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). To meetthese dual purposes, NEPA requires that an agency prepare a comprehensive EIS for“major Federal actions significantly affecting the quality of the human environment . . . .”42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1501.3. 2 NEPA imposes purely procedural
requirements, and “does not require that certain outcomes be reached as a result of theevaluation.” Nat. Res. Def. Council, Inc. v. EPA, 822 F.2d 104, 129 (D.C. Cir. 1987).
“Other statutes may impose substantive environmental obligations on federal agencies,
but NEPA merely prohibits uninformed – rather that unwise – agency action.”
Robertson, 490 U.S. at 351 (footnote omitted). A reviewing court is not to “substitute its
judgment for that of the agency.” California v. Block, 690 F.2d 753, 761 (9th Cir. 1982).
Rather, “[o]nce satisfied that a proposing agency has taken a ‘hard look’ at a decision’s

2

The Council on Environmental Quality (CEQ) promulgated regulations implementing
NEPA in 1978, 43 Fed. Reg. 55,978-01 (Nov. 29, 1978), and a minor substantive
amendment to those regulations in 1986, see 51 Fed. Reg. 15,618-01 (Apr. 25,
1986). More recently, the Council published a new rule, effective September 14, 2020,
substantially revising the 1978 regulations. The claims in this case arise under the 1978
regulations, as amended in 1986. All citations to the Council’s regulations in this brief
refer to those regulations as codified at 40 C.F.R. Parts 1500-08 (2019).
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6environmental consequences, the review is at an end.” Id. (citing Kleppe v. Sierra Club,
427 U.S. 390, 410 n.21 (1976)).
II.

Factual BackgroundThe nearly 23 million acres that comprise the NPR-A were originally designated anaval petroleum reserve by executive order in 1923. N. Alaska Env’t. Ctr. v.
Kempthorne, 457 F.3d 969, 973 (9th Cir. 2006). The U.S. Navy managed the Petroleum
Reserve until 1976, when Congress enacted the Naval Petroleum Reserves Production
Act (“NPRPA”), Pub. L. No. 94-258, 90 Stat. 303 (1976), re-designating the reserve as
the “National Petroleum Reserve in Alaska,” withdrawing it from operation of the mining
and mineral leasing laws, and placing it under the jurisdiction of the Secretary of theInterior. NPRPA, 90 Stat. 303. Congress amended the NPRPA in the Department of theInterior Appropriations Act for Fiscal Year 1981, Pub. L. No. 96-514, 94 Stat. 2957,
2964–65 (1980) (“1980 Rider”), by directing the Secretary of the Interior to undertake“an expeditious program of competitive leasing of oil and gas in the [NPR-A].” Id. at
2964.
In November 2012, BLM issued an Integrated Activity Plan/Environmental
Impact Statement (“IAP/EIS”) covering the entire NPR-A as a single planning area, toaddress the “nation’s need for production of more oil and gas through additional leasingin the NPR-A, and to protect surface values consistent with the exploration anddevelopment of oil and gas.” BLM_AR268917. The February 2013 record of decision(“ROD”) for the 2012 IAP/EIS made 11.8 million acres of NPR-A available for oil andgas leasing, subject to numerous lease stipulations and best management practices
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imposing requirements on lessees when constructing facilities and conducting oil and gas
operations. BLM_AR271559, BLM_AR271562-63, BLM_AR271596-650. In June
2020, BLM issued a new Final IAP/EIS for the NPR-A. BLM_AR286553. On
December 31, 2020, the Secretary of the Interior signed the ROD adopting Alternative E,
the preferred alternative in the 2020 IAP/EIS, opening an additional 6.8 million acres in
NPR-A to oil and gas leasing subject to numerous lease stipulations and required
operating procedures (formerly called best management practices). BLM_AR287107-09,
BLM_AR287125-67.
Conoco has valid leases within the NPR-A, issued prior to the 2020 IAP that“provide the right to develop the oil and gas resources therein.” BLM_AR182372.
Conoco requested that BLM prepare an EIS for the Willow Master Development Plan,
which proposes to build “infrastructure components for the purpose of oil and gas
development.” BLM_AR182389. The Willow Project may include up to five drill sites,a central processing facility, an operations center pad, up to thirty seven miles of gravel
roads, ice roads, one to two airstrips, up to 385.5 miles of pipelines, and a gravel mine, as
well as the transportation of modules for hauling project materials to the Project area. Id.
The Willow Project is anticipated to produce approximately 586 million barrels of oilover its lifetime. Id. In response to Conoco’s request, on August 7, 2018, BLM issued a
Notice of Intent to Prepare an EIS for the Willow Master Development Plan Oil and Gas
Prospect, Alaska. 83 Fed. Reg. 38,725-01, 38,725-26. BLM held an extended scoping
period ending September 20, 2018, with an additional extension for the Community of
Nuiqsut to comment. BLM_AR182391.
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On August 30, 2019, BLM issued a notice of availability of the Willow Draft EIS(“DEIS”). 84 Fed. Reg. 45,801-01. The comment period was open until October 29,
2019, and multiple public meetings were held during that comment period.
BLM_AR182392. BLM received 935 submissions during the DEIS public comment
period. Id. In response to subsistence-related concerns raised during the public comment
period, Conoco amended its application to incorporate a new module delivery option (viaan ice bridge across the Colville River), as well as other modifications to its project
design. Id. BLM issued a Supplement to the DEIS (“SDEIS”) on March 20, 2020,reflecting these changes. Id. BLM held an additional forty-five-day comment period for
the SDEIS, during which BLM held eight virtual meetings via Zoom (due to the COVID19 pandemic) and received a total of 31,015 submissions. BLM_AR182393. On August
14, 2020, BLM issued a Notice of Availability of the Final EIS (“FEIS”). 85 Fed. Reg.
49,677-01. On October 26, 2020, then-Secretary of the Interior Bernhardt signed the
ROD adopting Alternative B of the FEIS (Conoco’s proposed project) and Module
Delivery Option 3 (the Colville River Crossing). BLM_AR186073.
In March 2020, BLM also requested ESA Section 7 consultation with the Service
on the potential effects of the Willow Project on ESA-listed species, including the polar
bear at issue in this lawsuit, and certain designated critical habitat. FWS_AR000097. In
October 2020, the Service issued its BiOp and concluded consultation. With respect tothe polar bear, the Service determined that the Willow Project was not likely tojeopardize the continued existence of the polar bear or adversely modify its designatedSovereign Iñupiat for a Living Arctic et al. v. BLM et al.
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9critical habitat. FWS_AR000763-66. 3
The U.S. Army Corps of Engineers was a cooperating agency in the developmentof the FEIS. Corps_AR000150. In addition, the Corps evaluated Conoco’s application
for a permit under Section 404 of the CWA to discharge fill and dredged material, as wellas perform work in waters of the United States (“WOUS”), including wetlands, forpurposes of constructing the Willow Project. Id. The permit granted by the Corps
authorizes the permanent discharge of fill and dredged materials into 481.1 acres of
WOUS, and the temporary discharge of fill and dredged material into 157.9 acres of
WOUS. Corps_AR000151. In addition, 135.8 acres of wetlands would permanently beconverted to open water. Id.
LEGAL STANDARDS
Review on the merits is governed by the Administrative Procedure Act, 5 U.S.C.
§§ 701-706 (“APA”); City of Sausalito v. O’Neill, 386 F.3d 1186, 1205-06 (9th Cir.
2004). Under the APA, final agency action is reviewed under 5 U.S.C. § 706(2), andsuch review is highly deferential. Lands Council v. McNair, 537 F.3d 981, 992-94 (9thCir. 2008) (en banc), overruled in part on other grounds, Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 22 (2008). Agency decisions may be overturned only if“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Native Ecosystems Council v. Dombeck, 304 F.3d 886, 891 (9th Cir. 2002) (citation

3

Also, under the existing MMPA Southern Beaufort Sea Incidental Take Regulation, theService issued a Letter of Authorization to Conoco for the Willow project on December
21, 2020.
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10omitted). An agency action will be upheld if the agency has considered the relevant
factors and articulated a rational connection between the facts found and the choice made.
Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 105-06 (1983). The
court may not substitute its judgment for that of the agency. Motor Vehicle Mfrs. Ass’n.,v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
ARGUMENTI.

BLM and the Corps Satisfied the Requirements of NEPA
A. Plaintiffs’ NEPA Claims Are Barred by the NPRPA’s Statute of Limitations
The NPRPA states that “[a]ny action seeking judicial review of the adequacy of any

program or site-specific environmental impact statement . . . concerning oil and gas
leasing in the [NPR-A] shall be barred unless brought in the appropriate District Court
within 60 days after notice of the availability of such statement is published in theFederal Register.” 42 U.S.C. § 6506a(n)(1). As this Court has explained, the FEIS in
this case is both “site-specific” and “concern[s] oil and gas leasing.” Sovereign Iñupiat
for a Living Arctic v. BLM, Nos. 3:20-cv-290-SLG, 3:20-cv-308-SLG, 2021 WL 343925,
at *9 (D. Alaska Feb. 1, 2021). And it is undisputed that Plaintiffs filed their Complaints
95 days (Sovereign Iñupiat for a Living Arctic (“SILA”)) and 129 days (Center for
Biological Diversity (“CBD”)) after the August 14, 2020 Federal Register notice ofavailability for the Willow Project FEIS. Complaint, SILA v. BLM, No. 3:20-cv-290SLG (D. Alaska Nov. 17, 2020), ECF No. 1; Complaint, CBD v. BLM, No. 3:20-cv-308-

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11SLG, ECF No. 1 (D. Alaska Dec. 21, 2020). 4 Plaintiffs’ NEPA claims are thus barred by
the sixty-day statute of limitations.
This Court rejected Plaintiffs’ various arguments to the contrary in the preliminary
injunction stage of the case, and should do so again here. As a preliminary matter, both
Plaintiffs’ arguments rest on what they describe as a “strong presumption in favor of
judicial review of administrative actions.” SILA Pls.’ Opening Br. for Summ. J. 9, ECF
No. 95 (“SILA Br.”); see also CBD Pls.’ Principal Br. 19-20, ECF No. 92 (“CBD Br.”).
On that basis, Plaintiffs ask this Court to narrowly construe the NPRPA’s limitations
provision—which they describe as a “prohibition” of judicial review—and to resolve any
ambiguity in favor of allowing review here. The argument fails because the cases
Plaintiffs cite address whether a statute should be interpreted to preclude any judicial
review of certain agency actions (or of certain agency actions under certain
circumstances). See Love v. Thomas, 858 F.2d 1347, 1354, 1356 (9th Cir. 1988)(addressing whether a plaintiff’s failure to seek an administrative hearing barred judicial
review under the Federal Insecticide, Fungicide, and Rodenticide Act); Moapa Band of
Paiute Indians v. Dep’t of Interior, 747 F.2d 563, 565-66 (9th Cir. 1984) (addressing
whether a matter was committed to the agency’s sole discretion such as to bar judicial
review under 5 U.S.C. § 701); Marble Mountain Audubon Soc’y v. Rice, 914 F.2d 179,
181 (9th Cir. 1990) (addressing whether a challenge to a timber sale was barred by a4

Hereinafter, pleadings from the SILA docket (3:20-cv-290) and pleadings from the CBD
docket (3:20-cv-308) will be prefaced with “SILA” or “CBD” to distinguish them.
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12statute barring claims “on the sole basis that the plan in its entirety is outdated” (internal
citation omitted)). Unlike the statutes in those cited cases, the NPRPA does not preclude
judicial review; it merely conditions that review by imposing a deadline, so thatchallenges do not frustrate Congress’s desire for an expeditious program of competitive
leasing of oil and gas in the Petroleum Reserve.
Turning to Plaintiffs’ specific arguments, there is no support in the NPRPA’s text
for Plaintiffs’ contention that the statute of limitations applies only to EISs “analyzing theimpacts of lease sales.” SILA Br. 9; see also CBD Br. 13-14. Plaintiffs rely on grammar
rules and cherry-picked dictionary definitions to arrive at the same unavailingconclusion—that leasing is defined only as the act of granting a lease or conveying aright to lessee. SILA Br. 9-10; CBD Br. 13. But other dictionaries define leasing as an
ongoing act, i.e., “the act of using or letting somebody use something, especially property
or equipment, in exchange for rent or a regular payment.” 5 This latter definition
comports with the term’s common usage; in plain language, leasing an apartment to atenant does not conclude the moment the lease is signed, but instead when the lease isterminated. And while it is true that the “sale of a lease” is a “point of commitment,” atwhich point a lessee obtains certain legal rights, nothing in Conner v. Burford supports
the CBD Plaintiffs’ contention that the act of leasing ends when a lease is issued. 848
F.2d 1441, 1451 (9th Cir. 1988); see CBD Br. 13.

5

Leasing, Oxford Learner’s Dictionaries,
https://www.oxfordlearnersdictionaries.com/us/definition/english/leasing?q=leasing (lastvisited May 25, 2021).
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As this Court and others have recognized, BLM’s leasing programs (a phrase
adopted by Plaintiffs, SILA Br. 10) encompass more than simply entering into leases, butalso the subsequent stages of development and production. N. Alaska Env’t Center v.
Kempthorne, 457 F.3d at 977-78 (describing “the exploration and permit stages of theleasing program”); SILA, 2021 WL 343925, at *7. The literal act of issuing a lease does
not cause impacts to the environment; instead, it is the subsequent activity on theleasehold following the issuance of the lease that impacts the environment and must be
analyzed under NEPA. Additionally, even under Plaintiffs’ proffered definition of theword “concerning”—i.e., “relating to” or “regarding”— an EIS addressing explorationand development work, which is conducted pursuant to an oil and gas lease, plainly
regards and relates to “oil and gas leasing.” SILA Br. 10; CBD Br. 15.
The NPRPA’s application of the limitations period to “site-specific” EISs also
shows that Congress intended for the provision to apply to exploration and development
EISs. Interior’s practice has long been to first address overarching lease sale decisions in
a program EIS, and then to address exploration and development resulting from leaseissuance (both of which involve more detailed plans and fine-grained review) in sitespecific EISs or environmental assessments. See, e.g., BLM_AR268935-36 (stating the2012 IAP/EIS would fulfill NEPA requirements for lease sales, but “future actions
requiring BLM approval, including a proposed exploratory drilling plan, proposedconstruction of infrastructure for development of a petroleum discovery . . . would
require further NEPA analysis” based on site specific information). The statute’s express
reference to “site-specific” EISs indicates that Congress intended for the 60-day period toSovereign Iñupiat for a Living Arctic et al. v. BLM et al.
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apply both to the program EISs underlying the sale of leases and to the EISs analyzing
exploration and development activities on those leases. SILA, 2021 WL 343925, at *7.
The Willow EIS that Plaintiffs challenge is a site-specific EIS drafted solely for the
purpose of analyzing an oil and gas development project proposed pursuant to Conoco’s
oil and gas leases in the NPR-A. The EIS’s evaluation of these lease-based activities
implements the NPR-A leasing program and therefore falls within the plain language ofSection 6506a(n)(1).
In addition to lacking textual support, Plaintiffs’ narrow interpretation of thelimitations period finds no support in the statute’s context, history, or statements oflegislative intent. In response to a 1979 oil crisis and reflecting a desire to quickly movefrom federal to private oil and gas exploration and development, Congress amended the
NPRPA in 1980, directing the Secretary to undertake “an expeditious program ofcompetitive leasing of oil and gas in the [NPR-A].” 1980 Rider, 94 Stat. at 2964-65. The
1980 Rider itself is entitled “Exploration of [NPR-A],” (emphasis added) and it
contemplates not just leasing, but also oil and gas exploration and production and thepayment of royalties to the government. Id. at 2964-65.
The SILA Plaintiffs nonetheless insist that “Congress was focused on accelerating
the timeframe around leasing,” —not production or development. SILA Br. 11. But
leasing itself—as narrowly defined by Plaintiffs—would not result in oil production, theSovereign Iñupiat for a Living Arctic et al. v. BLM et al.
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ultimate “object and policy” of the 1980 Rider. SILA, 2021 WL 343925, at *8.6 SILA
Plaintiffs further argue that Section 6506a’s title, “Competitive leasing of oil and gas,”shows that the statute of limitations applies only to decisions concerning lease issuance.
SILA Br. 10 (citing 42 U.S.C. § 6506a). In fact, that title demonstrates that “leasing”
refers to more than the mere issuance of leases, as evidenced by the various provisions in
Section 6505a that relate to exploration and production. See 42 U.S.C. § 6506a(b)(addressing mitigation of impacts to surface resources); id. § 6506a(i) (addressing leaseextensions and expiration depending on production); id. § 6506a(k) (addressing
exploration incentives). The limitations period in Section 6506a(n)(1) likewise covers
exploration and production EISs because they “concern[] leasing” in the same way thatall provisions under the broad “Competitive leasing of oil and gas” title also “concern[]leasing.” Congress did not use the word “leasing” (or “exploration”) to the strict
exclusion of the other phases of a leasing program.
Finally, although the comments of individual legislators do not demonstrate theintent of Congress as a whole, the record here shows that the shared goal of expedited
review was not artificially limited to lease issuance decisions. See, e.g., 126 Cong. Rec.
S29,485, S29,489 (daily ed. Nov. 13, 1980) (individual statements of Sen. Huddleston
and Sen. Stevens emphasizing the need for expediting leasing, exploration, and6

SILA Plaintiffs are simply wrong in stating that a general prohibition on production anddevelopment existed in the NPR-A until 2005. SILA Br. 11-12. Among other things, theassertion cannot be reconciled with the presence of language in the 1980 Rider
specifically contemplating oil production.
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development); 126 Cong. Rec. S31,196 (daily ed. Dec. 1, 1980) (same); S. Rep. No. 96985, at 34 (1980) & H. Rep. No. 96-1147, at 32–33 (1980) (indicating an intent toquickly shift from federal to private exploration and development). Plaintiffs provide nocompeting evidence that legislators took a more limited view of the scope of thelimitations period.7
CBD Plaintiffs point out that only BLM’s leasing regulation at 43 C.F.R. § 3130.2
refers to the limitations provision, whereas other BLM regulations regarding explorationand development do not. CBD Br. 19. But Plaintiffs fail to recognize that the leasing
regulation they cite is within regulations specific to the NPR-A, whereas the explorationand development regulations they cite concern onshore oil and gas activates on federal
lands, generally. There is nothing to make of the fact that these general regulations do
not mention an NPR-A-specific statute of limitations.
For all of these reasons, Plaintiffs’ NEPA claims are barred by the NPR-A’s
statute of limitations and this Court should dismiss those claims with prejudice.
B. BLM’s Greenhouse Gas Emissions Analysis Satisfies NEPA
Both Plaintiffs argue that BLM’s analysis of greenhouse gas emissions (“GHG”)
violated NEPA because BLM “used the same modeling approach” recently rejected by
the Ninth Circuit in Center for Biological Diversity v. Bernhardt (Liberty), 982 F.3d 723(9th Cir. 2020). SILA Br. 23; see CBD Br. 21-23. That decision involved the Bureau of

7

CBD Plaintiffs cite statements by Representative Dicks (CBD Br. 18), but even those
selected quotes show the interest in seismic exploration and “early production,” not a
focus on lease issuance alone. Id. (citation omitted).
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Ocean Energy Management’s (“BOEM”) approval of offshore oil drilling and production
facility, viz., the Liberty Project. But BLM’s decision to approve the Willow Project is adifferent decision, based on a different record, and BLM reasonably explained its chosen
method, thus avoiding the shortcomings identified in the Liberty decision.
BLM’s analysis of lifecycle GHG emissions associated with the Willow Project
does not suffer from the flaws identified by the court in Liberty. As that court explained,“BOEM’s conclusion that not drilling will result in more carbon emissions than drilling iscounterintuitive.” Liberty, 982 F.3d at 739. The Liberty panel rejected BOEM’s
conclusion at a visceral level, finding “[a]n agency acts arbitrarily and capriciously when
it reaches a decision that is ‘so implausible that it could not be ascribed to a difference inview or the product of agency expertise.’” Id. (quoting State Farm, 463 U.S. at 43).
BLM made no comparable conclusion in its FEIS here. Unlike in Liberty, where theagency concluded that the absence of the proposed project would cause increased GHG
emissions, BLM in the Willow EIS explained that
The absence of the Project itself would not lead directly toemissions. Therefore, for ease of comparison to the action
alternatives, GHG emissions in the No Action Alternative areassigned a baseline value of zero in the EIS, reflecting thestatus quo and current GHG emissions trends in the absenceof the Project.
BLM_AR182422-23. In comparison, BLM estimated total direct and indirect CO 2eemissions from the Proposed Project to be approximately 260,000 (in thousand metrictons). BLM_AR182424. BLM’s approach forecasted a plausible result and provided thedecision maker an understanding of the GHG emissions expected to be associated with
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the Willow Project from the No Action Alternative. Thus, the Willow EIS provided what
is required under NEPA, a reasonable analysis of environmental impacts acrossalternatives. See Westlands Water Dist. v. U.S. Dep’t of Interior, 376 F.3d 853, 872 (9thCir. 2004).
Faced with what it considered a “counterintuitive” and “implausible” underlying
assumption by BOEM, the panel in Liberty found it could not defer to the agency’s
expertise, and moved on to question BOEM’s explanation for not attempting to calculate
the impacts of Liberty on foreign GHG emissions. Liberty, 982 F.3d at 736, 739. The
panel criticized BOEM for providing an explanation that “did not summarize existing
research addressing foreign oil emissions nor attempt to estimate the magnitude of such
emissions,” and that “ignore[d] basic economics principles and state[d]—withoutcitations or discussion—that the impact of the Liberty project on foreign oil consumption
will be negligible.” Liberty, 982 F.3d at 740. The panel rejected this approach, holding“the EIS ‘should have either given a quantitative estimate of the downstream greenhousegas emissions’ that will result from consuming oil abroad, or ‘explained more specifically
why it could not have done so[.]’” Id. (quoting Sierra Club v. Fed. Energy Regulatory
Comm’n, 867 F.3d 1357, 1374 (D.C. Cir. 2017)).
Contrary to Plaintiffs’ assertions, BLM explained in the Willow FEIS why it could
not perform a reliable quantitative estimate of downstream GHG emissions in foreigncountries, thus avoiding the key shortcoming the court identified in Liberty. See SILA
Br. 24; CBD Br. 21. BLM specifically explained that it could not extend the modeling of
foreign oil markets and price to global GHG emissions estimates because of “uncertainty
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19and lack of reliable data” for a number of crucial factors for that analysis.
BLM_AR182957, BLM_AR182963. That analysis would require “detailed data on
proportional consumption changes and the most likely energy substitutions.”
BLM_AR183508. Calculating global GHG emissions estimates would also requiredetailed data on “emissions from refineries, natural gas systems, [and] coal processing.”
Id. An estimate of downstream GHG emissions based on foreign consumption would
also require detailed data and information on “emissions factors specific to the energy
substitutes for all countries worldwide” as “the GHG emissions rates for even the sameclass of fuels can vary significantly from country to country.” BLM_AR182957.
BLM, in sum, adequately explained that it lacked data necessary for a reliable
quantitative estimate of downstream emissions in foreign countries, in contrast to theinadequacies identified in Liberty. And this explanation is not undermined by Plaintiffs’
observation that BLM was able to forecast changes in the demand for energy from theWillow Project. CBD Br. 7-9. Plaintiffs contend that BLM could simply have taken theextra step of quantifying global emissions stemming from those forecasted changes indemand, but this ignores the unpredictability discussed above concerning likely energy
substitutions, variability in GHG emission rates, and other associated emission factors.
The Court should defer to BLM’s choice of methodology, and its determination that it
lacked reliable data necessary to conduct Plaintiffs’ preferred methodology.
Finally, contrary to CBD Plaintiffs’ assertion, CBD Br. 23, the lack ofquantification of foreign emissions in the Willow EIS does not have the same potential
consequences as it did in Liberty. The estimated amount of oil to be produced (andSovereign Iñupiat for a Living Arctic et al. v. BLM et al.
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20therefore impacts on GHG emissions) is the same across the action alternatives
considered in the Willow EIS. BLM_AR182389, BLM_AR183506. BLM would nothave approved another alternative on the basis of a quantification of foreign emissions
because this impact would have been the same across the action alternatives. See Liberty,
982 F.3d at 740 (“If [BOEM] later concludes that [foreign GHG] emissions will besignificant, it may well approve another alternative included in the EIS . . . .”). Plaintiffs
have not, therefore, explained how omissions in the GHG analysis resulting fromuncertainty equates to arbitrary decision making, nor have they have alleged that BLM
had discretion to adopt the no action alternative, given that Conoco’s existing lease rights
under the NPRPA entitle it to develop its leases subject to reasonable regulation by BLM,
(BLM_AR182372, BLM_AR183185)8 and the purpose and need of the project(discussed further below).
C. BLM Considered a Reasonable Range of Alternatives under NEPA
NEPA’s implementing regulations prescribe that an agency “[r]igorously explore
and objectively evaluate all reasonable alternatives.” 40 C.F.R. § 1502.14(a) (2019).
“The existence of a viable but unexamined alternative renders an environmental impact
statement inadequate.” Westlands Water, 376 F.3d at 868 (citation omitted). But thisrequirement is not rigid. Otherwise, “an agency could generate countless alternatives.”
Morongo Band of Mission Indians v. F.A.A., 161 F.3d 569, 575 (9th Cir. 1998) (citation

8

The leases at issue in Liberty were issued under the Outer Continental Shelf Lands Act,
which conditions development and production rights on BOEM’s discretionary approvalof a development and production plan. 43 U.S.C. § 1337(b)(4).
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omitted). Instead, an agency’s choice of alternatives is governed by a “rule of reason,”under which an EIS “need not consider an infinite range of alternatives, only reasonableor feasible ones.” Westlands Water Dist., 376 F.3d at 868 (citation omitted); see also
Headwaters, Inc. v. Bureau of Land Mgmt., Medford Dist., 914 F.2d 1174, 1180 (9th Cir.
1990) (Agency need not “consider alternatives which are infeasible, ineffective, orinconsistent” with its objectives). An agency’s consideration of alternatives is dictatedby the “nature and scope of the proposed action.” Nw. Env’t Def. Ctr. v. BonnevillePower Admin., 117 F.3d 1520, 1538 (9th Cir. 1997) (citation omitted). An agency need
not analyze alternatives that do not meet the agency’s purpose and need. League ofWilderness Defs.-Blue Mountains Biodiversity Project v. U.S. Forest Serv., 689 F.3d
1060, 1070-71 (9th Cir. 2012). The “touchstone for [a court’s] inquiry is whether an
EIS’s selection and discussion of alternatives fosters informed decision-making andinformed public participation.” Morongo Band, 161 F.3d at 575 (citation omitted).
The purpose of the Proposed Action is “to construct the infrastructure necessary toallow the production and transportation to market of federal oil and gas resources underleaseholds in the northeast area of the NPR-A, consistent with the proponent’s federal oil
and gas lease and unit obligations.” BLM_AR182390. The need for BLM’s action is to
issue authorizations under the NPRPA to conduct oil and gas development in the NPR-A.
Id.
Consistent with this purpose and need, the FEIS analyzed in detail four
alternatives. Alternative A, the No Action Alternative, was provided for baselinecomparison but BLM found it did not “have the authority to select this alternative
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22because [Conoco’s] leases are valid and provide the right to develop the oil and gas
resources therein,” a view that the Plaintiffs have not challenged. BLM_AR182372.
Alternative B is Conoco’s proposed project, ultimately adopted by BLM’s ROD. Thatalternative extends an “all season gravel road from the Greater Mooses Tooth 2development toward the Project area” and connects all Project facilities, including theprocessing facility, with gravel roads. Id. Alternatives C and D include fewer gravel
roads in different locations, and were intended to minimize the Project’s effects on
caribou movement and subsistence users (Alternative C), and reduce impacts tohydrology and wetlands (Alternatives C and D). BLM_AR182372-73. The FEIS also
analyzed three different options for delivering prefabricated modules to the Project area,
any of which could be combined with any action alternative. BLM_AR182373-74.
CBD Plaintiffs contend BLM’s alternatives analysis is flawed because it did notconsider specific additional alternatives. CBD Br. 23-25. Specifically, they complainthat BLM did not consider an alternative prohibiting permanent infrastructure in theTeshekpuk Lake9 and Colville River Special Areas,10 or an alternative that would permit

9

Similar to the 2020 NPR-A ROD, see generally BLM_AR287133-44, the 2013 NPR-A
ROD includes lease stipulations and best management practices, including a series toprovide “Additional Protections that Apply in Select Biologically Sensitive Areas.”
BLM_AR271630-48. Several of these restrictions do prohibit certain types of permanent
infrastructure within the Teshekpuk Lake Special Area including near Teshekpuk Lake or
the Teskekpuk Lake Caribou Habitat Area. See BLM_AR271662, BLM_AR271630-34,
BLM_AR2716638-41, BLM_AR271643-44.
10
The 2020 IAP ROD eliminates the Colville River Special Area entirely.
BLM_AR287108.
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drilling only during the winter season and eliminate construction of permanent roads.
CBD Br. 23. But BLM explained that the purpose and need of the project could not be
met without infrastructure in the Teshekpuk Lake Special Area because two of the drillsites (Bear Tooth 2 and 4) are within that Special Area. BLM_AR183012. As to the
proposal that Conoco be limited to winter-only drilling, BLM explained that drilling only
during the winter season would reduce drilling to approximately two months per year andthat this would significantly threaten the economic feasibility of the Willow Project. Id.
BLM noted that “leases are subject to a limited term of years,” and reasonably concluded
such a short drilling season would extend the life of the project (and its associatedimpacts) for decades, and likely beyond the term of the lease. Id. BLM need notconsider infeasible alternatives. Further, during the alternatives development, BLM
concluded an ice road or tundra access only option would “create unacceptable hazards
for safety and emergency response and limit the number of wells that could be drilled per
season.” BLM_AR183188. BLM, in sum, reasonably found that neither of Plaintiffs’
proposed alternatives would achieve the project’s purpose and need, and it permissibly
excluded them on that basis from detailed analysis in the FEIS.
Nowhere does BLM claim that Conoco’s leases allow them to “grant rights to drilland build infrastructure wherever, whenever, and however the company wants.” CBD
Br. 25. But, Conoco does have valid lease rights. The Mineral Leasing Act regulations
provide that a “lessee shall have the right to use so much of the leased lands as isnecessary to explore for, drill for, mine, extract, remove and dispose of all the leased
resources in a leasehold,” subject to stipulations and measures to minimize adverse
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impacts.11 43 C.F.R. § 3101.1-2. BLM appropriately considered Conoco’s lease rights instructuring its NEPA analysis.
D. Defendants Took the Requisite Hard Look at the Impacts of the Willow
Project on the Environment
The FEIS consists of seven volumes, spanning over 3,600 pages, and took over
two years and over six million dollars to draft, evaluate, and finalize. BLM_AR182353186037. It analyzes in detail four alternatives, and three delivery options, and theimpacts of those options on the climate and climate change, air quality, soil and gravel
resources, noise, visual resources, water resources, wetlands and vegetation, fish, birds,
terrestrial mammals, marine mammals, economics, subsistence, and sociocultural
systems, among other resources. This analysis provided a reasonable basis to support
BLM’s decision.
1. BLM and the Corps Had the Information Necessary to Take a Hard Lookat the Impacts of the Project
The SILA Plaintiffs contend that BLM and the Corps failed to take a hard look at
Willow’s impacts because “[t]he agencies lacked critical project design and baseline
information.” SILA Br. 12. In fact, the agencies took a hard look at the Willow Project’s
impacts, including impacts from the alternative proposed water crossings and impacts
from building gravel roads and other infrastructure. The analysis did not suffer for lackof specific project information.

11

While the NPRPA regulations do not have a comparable provision, the MLA
influenced and served as a model for the NPR-A leasing regulations. See, e.g., 46 Fed.
Reg. 37,725 (July 22, 1981).
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Beginning with the analysis of impacts to water resources and wetlands, the FEIS
describes the proposed bridges for the Willow Project, including the number of bridges in
Alternative B (BLM_AR182484-85), the length of the bridges, their clearance above
100-year design-flood elevation or highest documented flood elevation, andcorresponding construction details. BLM_AR182400. Section 3.8.2.3.4 of the FEIS
describes the potential effects of all in-water structures on surface waters, including on
suspended sediment, turbidity, backwater, riverbed erosion, sediment deposit, andchanged morphology. BLM_AR182484-85. And while Plaintiffs describe these as“generalized summaries” (SILA Br. 12-13), their criticism ignores the existence of theWater Resources Technical Appendix (Appendix E.8A), which provides a detailed
explanation of the potential impacts of the Project to streams, including sedimentdeposition, sediment transport, and changes in channel morphology downstream frombridges. BLM_AR185506-35.
The SILA Plaintiffs incorrectly state that this “technical memorandum” only
analyzed a hypothetical data set (SILA Br. 16); in fact, the technical appendix
incorporates data BLM asked for and received from Conoco relating to flow data at
proposed crossing locations on the Colville River. BLM_AR185512-13; see also
BLM_AR144675, BLM_AR145089, BLM_AR145464. The additional data points
provided by Conoco allowed BLM to extrapolate additional stream flow data for analysis
using a commonly accepted hydrological analysis method (the drainage-area ratio
method), BLM_185513, as explained thoroughly in Appendix E.8, BLM_185538-45.
Both appendices (E.8 and E.8A) were generated to address EPA comments suggesting
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additional information was necessary. BLM_AR183133. Thus, the agencies did not lackany critical project design and baseline information regarding impacts to water resources,
but instead provided that information in the FEIS, satisfying NEPA’s requirement to“carefully consider[] detailed information concerning significant environmental impacts”
and provide the public with “relevant information.” Robertson, 490 U.S. at 349.
Plaintiffs appear to allege that because the Section 404 permit application wasreceived after the DEIS was published, the Corps could not rely on the FEIS, and, as aresult, the Corps’ NEPA review is somehow deficient.12 SILA Br. 14. They are wrong.
The Corps was a cooperating agency on the FEIS. Corps_AR000150. NEPA regulations
provide for adoption by a cooperating agency of the EIS by a lead agency if thecooperating agency reviews and “concludes that its comments and suggestions have beensatisfied.” 40 C.F.R. § 1506.3(c) (2019). Here, the Corps conducted a review of andadopted the FEIS. Corps_AR000151, Corps_AR000156. And, the FEIS incorporated
and addressed all project changes postdating the publication of the DEIS, including thosereflected in the CWA 404 permit application. BLM_AR182392-93; Corps_AR000151;
Corps_AR000154. Thus, it was appropriate for the Corps to rely on the FEIS when
making its decision, and, as discussed above, the FEIS adequately disclosed information
relating to impacts of the project on water resources.

12

To the extent Plaintiffs imply that the Section 404(b)(1) Guidelines analysis had to becompleted in the EIS, they are wrong as discussed below. Instead, the 404(b)(1)
Guidelines analysis was appropriately included in the Corps’ Record of Decision.
Corps_AR000197-215.
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In addition to analyzing impacts to wetlands and water from the Project, the FEIS
also includes sufficient information regarding the proposed roads and infrastructure thatthe agencies considered in their analyses. The FEIS details in numerous places the total
length of roads and amount of gravel needed for those roads. See, e.g.,
BLM_AR182375-76, BLM_AR183232, BLM_AR183242, BLM_AR183277. Similarly
the location of gravel roads is identified in Figures 2.4.1-3. BLM_AR182754,
BLM_AR182755, BLM_AR182756. As to specifics on drill pads, the EIS analyzes arange of number of wells per pad and sizes of pads, and the associated impacts of eachpad. BLM_AR182398, BLM_AR182410. This information reflects BLM’s hard look at
the impacts of the Willow Project, and contrary to Plaintiffs’ contentions, goes beyond amere “summary.” SILA Br. 13.
Finally, the SILA Plaintiffs suggest that BLM has improperly deferred aspects of
its NEPA analysis. They are wrong. First, Plaintiffs misinterpret a response to a publiccomment—stating that BLM might do additional NEPA analysis later in time—assuggesting the agencies flouted their obligation to complete a NEPA analysis prior to
project approval. SILA Br. 14-15. But the referenced response to comment merely
explains that BLM would review any right of way application or applications for permit
to drill when received “for completeness and [to] determine whether the scope of the
Project falls within what was analyzed in the EIS.” BLM_AR182995. This recognizes
that an application for a project inconsistent with the originally analyzed proposal or
going beyond the scope of the EIS may require additional NEPA analysis pursuant to 40
C.F.R. § 1502.9(c)(1)(i) (2019) (requiring supplemental analysis when the agency
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“makes substantial changes in the proposed action that are relevant to environmental
concerns”). Similarly, Plaintiffs misinterpret BLM’s mitigation design criteria as lacking
finite form because it required consideration of two alternative criteria. But the two
referenced criteria simply reflect that sometimes during the year conditions include snow
and ice, and other times in the year conditions are “ice-free”, and thus mitigation design
must account for both types of site-specific conditions. BLM_AR182481. There is no“plan for a plan,” as Plaintiffs suggest, SILA Br. 15, just a requirement that Conoco take
into account seasonal weather patterns in its design.
2. BLM Adequately Considered the Impacts of the Project on Caribou
CBD Plaintiffs argue that, while the FEIS includes “detailed analysis of some
aspects of the project’s potential impacts to caribou,” it nevertheless does not satisfy
NEPA because it does not consider the effect on the Teshekpuk Lake Herd’s winterhabitat. CBD Br. 29. They are wrong for several reasons.
First, the Teshekpuk Herd is not being displaced from its winter habitat. The
herd’s winter habitat covers a broad area, and the Project area only overlaps with a small
portion of that area. BLM_AR182802.
Second, the FEIS does analyze winter impacts to caribou. Section 3.12.2.3.2
describes “disturbance or displacement” to caribou. BLM_AR182565-67. And the entire
subchapter 3.12 focuses on impacts to caribou, including in which seasons and specificlocations impacts are likely to occur. Id.; see e.g., BLM_AR182569-70 (describing asecond airstrip located in an area “with lower densities of caribou” but recognizing thenoise from the airstrip would “disturb more caribou during the calving season.”) The
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FEIS recognizes that “noise would be greatest during winter construction,” and that noisefrom human activity “would disturb and displace caribou from around the mine site
during all periods of human activity.” BLM_AR182566. The FEIS states that ice roads,
which would be constructed each winter under each of the action alternatives, “could
have long-lasting effects on disturbance and displacement of caribou in winter.”
BLM_AR182570-71. The FEIS also compares the impacts of noise from air and groundtraffic during the winter on caribou. BLM_AR182566-70. Additionally, the FEIS tiers
to the 2012 NPR-A IAP/EIS which provides additional discussion of the winter impacts
to caribou in the NPR-A. See, e.g., BLM_AR269645, BLM_AR269859.
Third, the CBD Plaintiffs assert the FEIS violates NEPA because it does notinclude an acknowledgement that there is “unprecedented exposure” to the Teshekpuk
Herd. CBD Br. 29. Relying on the 2012 NPR-A IAP/EIS, they contend that no herd has
previously been exposed to development in its winter range, and they contend there is noevidence that caribou habituate to disturbance in the winter. Id. But the IAP/EIS theycite predates the GMT1 and GMT2 development approvals, and the ongoing existence ofthe herd following those development projects undermines Plaintiffs’ contentions. See,e.g., BLM_AR182567 (recognizing subsistence hunters use “roads in the GMT and
Alpine area to hunt caribou”). And, BLM did analyze the exposure of the herd andpotential risk to its winter habitat; whether or not the EIS characterizes the exposure as“unprecedented” amounts to mere flyspecking. “[T]he reviewing court may not ‘fly
speck’ an EIS and hold it insufficient on the basis of inconsequential, technicaldeficiencies.” Ass’n of Pub. Agency Customers, Inc. v. Bonneville Power Admin., 126
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F.3d 1158, 1183-84 (9th Cir. 1997) (citation omitted).
3. The EIS Contains Sufficient Information Regarding Reasonably
Foreseeable Future Actions to Satisfy NEPAThe SILA Plaintiffs’ argument that the EIS did not provide sufficient information
to analyze the reasonably foreseeable future actions (“RFFAs”) is wrong. The agencies
described each of the RFFAs at a high level, then incorporated each into their cumulative
impacts analysis, as required by NEPA.
Chapter 3.19 of the Willow FEIS provides the cumulative effects analysis of the
proposed project and the alternatives, examining the impacts of the project together withthe past, present, and reasonably foreseeable future actions. BLM_ AR182668-87. Table
3.19.1 identifies and describes, in summary fashion, each of the RFFAs considered in the
cumulative effects analysis throughout the chapter. BLM_AR182669-71. Insofar as the
SILA Plaintiffs complain that the table itself lacks adequate detail for those RFFAs, they
improperly ignore that the information appears elsewhere in the FEIS.
Beginning with the Greater Willow RFFA, the FEIS provides ample information,
including the very information Plaintiffs insist the EIS omitted. SILA Br. 18. Greater
Willow is at this point only a potential expansion of Willow. BLM_AR182670. As such,
all information SILA Plaintiffs cite is preliminary given that Conoco may not evenchoose to apply to develop the two potential drill sites. Even so, the information
Plaintiffs claim the agencies had, and presumably should have disclosed, (i.e., proposed
drill site locations, estimates for production amount and timing from Greater Willow), isalready included in the FEIS. See BLM_AR183610- 14 (Chapter 2.2 of Appendix E.3
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describing and quantifying cumulative emissions for the Greater Willow potential drillsites); BLM_AR183202-03 (Appendix D.1 addressing potential use of the proposed
pipeline by the Greater Willow project).13 The FEIS also includes the Greater Willow
Project in its cumulative impacts analysis, see e.g., BLM_AR182671 (addressing Greater
Willow project’s emissions in a discussion of cumulative climate impacts). To the extent
Plaintiffs complain that the Greater Willow was not included in other sections of the
FEIS, it is because the project had no relevant effects within the time frame analyzed.
BLM_AR182673.
The record also contains adequate information relating to Nanushuk because thecorresponding EIS was incorporated into the Willow EIS by reference.
BLM_AR182668; see also BLM_AR276692-96. Incorporating an EIS by reference has
the same effect as if the information in the incorporated EIS were duplicated in the FEIS.
See 40 C.F.R. § 1502.21 (2019). Plaintiffs have not challenged the adequacy of the
Nanushuk EIS in litigation directed at that project, and they have no basis for challenging
the agencies’ reliance on that same EIS in this new context. The Nanushuk EIS,
moreover, did consider Willow as an RFFA in its own cumulative impacts effects
analysis, and that analysis is likewise incorporated by reference in the Willow EIS.

13

SILA Plaintiffs brief cites to an administrative version of the FEIS which is actually
non-final. See SILA Br. 18, & nn. 91, 94-96. Here, they cite to BLM_AR180440,
included in the published FEIS at BLM_AR182862, BLM_AR180881, included in the
FEIS at BLM_AR183610, and BLM_AR180524, included in the published FEIS at
BLM_AR183202- 03.

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BLM_AR276965, BLM_AR277632.
Finally, the FEIS appropriately considered known exploration projects as RFFAs.
Nowhere does the FEIS describe exploration as speculative. 14 Instead, exploration
activity was grouped “as one RFFA due to the disparate and constantly changing details
about activities by a wide variety of projects.” BLM_AR182669. The FEIS provides an
explanation for the agencies’ method of analysis and the Court should defer to theirexpertise about why this was appropriate. See Kern v. U.S. Bureau of Land Mgmt., 284
F.3d 1062, 1075 (9th Cir. 2002) (“When an agency's determination of what arereasonably foreseeable future actions and appropriate component parts is fully informed
and well-considered, we will defer to that determination.” (internal quotation marks andcitation omitted)). Plaintiffs suggest that grouping exploration activities somehow
obscures the associated cumulative impacts of those exploration activities, but the FEIS
makes clear that exploration activities and their impacts are anticipated over the life of
the Project, and BLM reasonably explained why a more granular analysis would not havebeen feasible. BLM_AR182669.

14

Plaintiffs’ citation, SILA Br. 19, is to an email, BLM_AR100578–79, not the FEIS.
Additionally, if these projects were speculative, they would by definition not bereasonably foreseeable, and thus would not have been included in the cumulative effects
analysis. See Chilkat Indian Vill. of Klukwan v. Bureau of Land Mgmt., 399 F. Supp. 3d888, 920 (D. Alaska 2019) (“[W]here plans remain speculative and have not been
reduced to specific proposals, cumulative impacts analysis is not required.” (internal
quotation marks and citation omitted)), aff’d 825 F. App’x 425 (9th Cir. 2020).
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4. The EIS Adequately Analyzes the Project’s Cumulative Effects on Fish
and Polar Bears
SILA Plaintiffs also argue the FEIS did not adequately analyze the cumulative
effects from Willow on fish and polar bears. SILA Br. 20-23. This is incorrect.
As an initial matter, the FEIS determines that the direct and indirect impacts toboth fish and polar bears from the Willow Project will be minor. See BLM_AR18250625; BLM_AR182575- 602. The FEIS states that “the RFFAs would have similar types ofeffects on fish” as the Willow Project. BLM_AR182675. The FEIS details the different
cumulative effects of the Willow Project combined with the RFFAs on fish from water
removal, climate change, increased temperature, and vessel traffic. BLM_AR18267576. Similarly, the FEIS includes a section analyzing the cumulative effects of the Willow
Project on marine mammals, including polar bears. BLM_AR182679-80. These impacts
are described as incremental from other projects in the area with the main effect resulting
from climate change resulting in a loss of sea-ice habitat. Id. The FEIS does provide
quantification of those impacts when appropriate (for example, the FEIS quantifies the
GHG emissions from RFFAs, BLM_AR182671-72). While the FEIS does recognize thepotential effects of the Willow Project and its RFFAs on fish, nowhere does the FEIS
suggest that these would “significantly impact fish and polar bears.” SILA Br. 20-21.
And, as described above, the FEIS did include sufficient information on the
RFFAs in its cumulative effects analysis. While Nanushuk and other nearby exploration
projects are not called out by name in the cumulative effects analysis for these two
resources, those sections clearly include an analysis of RFFAs. It is within the agencies’
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discretion to describe the RFFAs in the cumulative effects analysis as a unit, rather thanspecifying each RFFA by name when analyzing the cumulative effects to each resource
considered. Chilkat Indian Vill. of Klukwan, 399 F. Supp. 3d at 919–20 (““[T]he scopeand nature of the . . . cumulative impacts analysis is a matter committed to the sounddiscretion of the agency.” (quoting Rock Creek All. v. U.S. Forest Serv., 703 F. Supp. 2d1152, 1173 (D. Mont. 2010)).
II.

The Corps’ Issuance of a Section 404 Permit Here Was Reasonable andConsistent with the CWA
The Corps issued a Section 404 permit to Conoco following the Corps’ proper

determination under the Section 404(b)(1) Guidelines that (1) the Project will not cause
or contribute to significant degradation of waters of the United States; (2) the discharge isthe least environmentally damaging practicable alternative; and (3) appropriate andpracticable steps were taken to minimize potential adverse impacts of the discharge on
the aquatic ecosystem. See Corps_AR000204, Corps_AR000234. SILA Plaintiffs do notargue that there is a less environmentally damaging practicable alternative to the Project,or that there were practicable steps to minimize adverse impacts of the discharge that theCorps failed to require. Nor do they argue that the Project is not in the public interest.
Instead, SILA Plaintiffs argue that issuance of a Section 404 permit was unlawful
because the Corps improperly concluded that the Project “will not cause or contribute tosignificant degradation.” SILA Br. 26–33. Specifically, SILA Plaintiffs contend that theCorps lacked sufficient information for that finding, and that it was based in part on an
unsupported conclusion that the Project’s impacts would be adequately mitigated. Id. To
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reach this conclusion, SILA Plaintiffs misconstrue the Corps’ ROD and Permit, the FEIS,
and other parts of the record. When considered in full, these documents show that theCorps’ decision was reasonable and well-supported.
A. Ample Evidence Supports the Corps’ Conclusion that the Project Will Not
Cause Significant Degradation
SILA Plaintiffs allege that the Corps violated the Guidelines because it failed toanalyze the loss of functions of wetlands from the Willow Project. SILA Br. 26–27. Butthat argument comes up short. First, nothing in the Guidelines requires the Corps toundertake an in-depth analysis of the functional values of wetlands. 15 See
Corps_AR000169. SILA Plaintiffs cannot point to any requirement that the Corps
undertake the type of analysis of wetland functions that SILA Plaintiffs demand. Second,
the Corps’ ROD nevertheless evaluated impacts to wetlands, concluding that the Project
would result in 616.9 acres of permanent impacts to waters of the United States, 157.9
acres of temporary impacts, and 3,351.9 acres of secondary impacts. Corps_AR000209–
10; see also Corps_AR000144, 187, 197–202. The Corps identified eighteen types of
wetlands and four types of waters that would be affected. Corps_AR000209. The Corps’
ROD also relied upon and incorporated the FEIS, which further evaluates potential
impacts to wetlands. Id. (citing the FEIS at BLM_AR182493–506, BLM_AR182675,
BLM_AR185550-57); see Hoosier Envt’l Council v. U.S. Army Corps of Eng’rs, 722

15

Nor did the Corps request, as SILA Plaintiffs assert (see SILA Br. 27), that BLM pause
the permitting process so that the Corps could undertake such an assessment. See
BLM_AR103085–86 (requesting a “pause[]” solely to address “technical issues”).
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F.3d 1053, 1061 (7th Cir. 2013) (“If another agency has conducted a responsible analysis
the Corps can rely on it in making its own decision.”).
As described in the ROD, the Corps determined that the creation of uplands due tothe discharge of fill material would result in the direct loss of a range of wetland
functions and services, including water storage, fish and wildlife habitat, shoreline
stabilization, and nutrient production. Corps_AR000209. The Corps also determinedthat linear features such as access roads and work pads could adversely impact wetlandhydrology by intercepting natural drainage and preventing the flow of water downhill.
Id. In its assessment of impacts to permafrost-supported wetlands, the Corps concluded
that the disruption of natural hydrology and addition of fill material could cause
thermokarsting16 and affect the accumulation and decomposition of soil organic matter.
Corps_AR000209.
Both the Corps’ ROD and the FEIS also address secondary impacts to wetlands,
including from dust and culverts. The Corps concluded that the construction and use ofgravel roads and pads would create a “dust shadow” that could smother vegetation, altersoil composition and moisture levels, and contribute to thermokarsting.
Corps_AR000210; see also BLM_AR182444–53, BLM_AR182503–04. The Corps
estimated that 3,351.9 acres of wetlands will be impacted by the dust shadow.
Corps_AR000210. SILA Plaintiffs contend that this figure is an underestimate because

16

Thermokarsting is the process by which permafrost thaws, causing changes totopographical features such as the formation of lakes, sinkholes and pits. See
BLM_AR182449–50.
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the Corps arbitrarily set a 100-meter radius for its dust shadow analysis. SILA Br. 28.
SILA Plaintiffs ignore, however, that the FEIS explained that approximately 95% of dust
settles within 100 meters of a road surface. BLM_AR182503. The radius the Corps used
for the dust shadow therefore was reasonable. The Corps addressed concerns about the
dust shadow in Special Permit Condition No. 27, which requires Conoco to minimize
dust discharges to the maximum extent possible, and to implement dust abatement
practices for the life of the Project. Corps_AR000009. Conoco’s compliance with thisCondition will be determined by visible dust and gravel presence on tundra wetland
areas. Id.
Contrary to SILA Plaintiffs’ assertion (SILA Br. 28), the Corps did assess theimpacts of culverts on surface flow and natural drainage patterns, including thepossibility that any culverts might malfunction. Corps_AR000167. The Corps addressed
these concerns in Special Permit Condition No. 26, which required Conoco to submit
annual monitoring reports for three years that include an evaluation of all areas where
additional culverts are necessary to maintain existing drainage patterns and where culvert
maintenance or repair are necessary. Corps_AR000008. This Condition requires Conoco
to maintain all culverts for the life of the Project. Id.
Because the record shows that the Corps properly assessed and addressed theimpacts to wetlands as required by the Guidelines, its conclusion that the Willow Project
would not cause significant degradation was reasonable.

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B. The Corps Appropriately Determined the Need for Compensatory Mitigationthat Will Offset “Unavoidable Impacts”
Conoco proposed a compensatory mitigation plan (the “Mitigation Plan”) that will
implement a combination of wetland preservation and wetland restoration to offset direct
and indirect “unavoidable impacts” to waters of the United States, including wetlands.
Corps_AR000326–612. The Corps evaluated the Mitigation Plan consistent with the
Guidelines and the 2018 Joint USACE-EPA Memorandum of Agreement, anddetermined that the Plan was appropriate and practicable. Corps_AR000183. SILA
Plaintiffs allege without basis that the Corps failed to explain its decision not to require
Conoco to offset impacts from fill in a majority of affected wetlands. See SILA Br. 31.
In fact, the Corps conducted a detailed, watershed based-analysis to determine whether
any given impact required mitigation. Corps_AR000183–86. Specifically, the Corps
evaluated impacts within ten individual watersheds as delineated by the U.S. Geological
Survey. Corps_AR00185–86 (listing new and existing disturbed acres for eachwatershed by Hydrological Unit Code). For each watershed, the Corps assessed both theacreage expected to be impacted by the Willow Project and the total acreage expected tobe disturbed by any human activity. Id. The Corps reasonably determined based on aliterature review that the lowest percentage of impervious cover that could cause ameasurable impact to stream health was 4.4%, and that it would require compensatory
mitigation for any watershed with cumulative disturbance above that threshold. Id.
Because no watersheds approached the 4.4% level, compensatory mitigation was not
required on that basis. Corps_AR000186.
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The Corps did identify significant unavoidable impacts requiring compensatory
mitigation within: (1) 500 feet of anadromous waterways; (2) the Colville River Special
Area; and (3) the Teshekpuk Lake Special Area. Corps_AR000186-87. For each ofthese three areas, the Corps evaluated and concurred with Conoco’s calculation of debits
for direct and indirect impacts, which included an analysis, by National Wetlands
Inventory (“NWI”) type, of all acres directly and indirectly impacted in each area.
Corps_AR000187–88. SILA Plaintiffs nevertheless point to an EPA comment letter as
support for their argument that the Corps did not adequately explain its decision torequire compensatory mitigation only within these areas. SILA Br. 31; see also
Corps_AR003973–77). However, that letter predated the final Mitigation Plan, and, as
the Corps explained in its response to comments, the analysis in the record demonstrates
that the Plan satisfies the Guidelines. Corps_AR000161–63.
Conoco’s Mitigation Plan proposed (1) two permittee-responsible compensatory
mitigation projects that will enhance 209.1 acres of palustrine wetlands functions, and (2)the preservation of 800 acres of pristine Arctic Coastal Plain wetlands at one of two
possible locations. Corps_AR000336–38. SILA Plaintiffs argue that the mitigation inthis Plan and its supporting analyes are inadequate. SILA Br. 32–33. SILA Plaintiffs
ignore, however, that at the Corps’ request, the Mitigation Plan included a detailed
evaluation of the condition of wetlands in these areas using the Corps’ North Slope Rapid
Assessment Method and the Alaska District: Credit Debit Methodology.
Corps_AR000338–62. This evaluation included characterizations of wetlands by NWI
type, a comparison of wetlands that would be impacted with wetlands at the proposed
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mitigation sites, and for the two potential preservation sites, an analysis of ecologicalsignificance and threat of development. Id. The Corps evaluated the Mitigation Plan andconcluded that it “would provide appropriate and sufficient compensatory mitigation
required to offset unavoidable losses to aquatic resources.” Corps_AR000188.
Finally, SILA Plaintiffs contend (SILA Br. 32–33) that the Mitigation Plan does
not ensure permanent protection of the preserved areas because it does not require theutilization of any specific legal instrument; however, Special Condition No. 21 of thePermit requires the Corps to approve the site protection instrument, thereby providing
adequate oversight over the implementation of this aspect of the Plan. See
Corps_AR000008.
The record shows that the Corps properly assessed both the need for compensatory
mitigation and the adequacy of the proposed mitigation the Guidelines. Its conclusionthat the Mitigation plan was “appropriate and sufficient” therefore was reasonable.
III.

The Service’s Analysis Satisfies the ESA
A. The Service’s ESA Analysis Was Consistent with the ESA and Reasonable.
Plaintiffs’ arguments that the Service inappropriately relied on uncertain MMPA

mitigation measures for its ESA Section 7 determinations concerning polar bears andfailed to adequately assess and quantify incidental take, see SILA Br. 34-40, CBD Br. 3037, are wrong. The Service fully complied with the ESA and the relevant implementing
regulations. 50 C.F.R. § 402.14(g)(8). And the Service’s expert Section 7 opinion thatthe authorization of Conoco’s Willow Project would not jeopardize the polar bears’continued existence nor would it adversely modify any designated critical habitat isSovereign Iñupiat for a Living Arctic et al. v. BLM et al.
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similarly reasonable. FWS_AR000763-66. Likewise, the Service’s determinations
concerning anticipated levels of take are reasonable. Contrary to Plaintiffs’ assertions,
the Service’s ESA Section 7 determinations are consistent with the ESA, reasonable,
supported by the administrative record, and should be upheld.
1. BLM’s proposed action appropriately defined the contours of the project.
Before authorizing the Willow Project, BLM requested Section 7 consultation due
in part to its identification of potential effects to the polar bear and its designated critical
habitat. FWS_AR000097. BLM’s proposed action includes numerous specific andenforceable protective and mitigation measures, including: Required lease stipulations and required operating procedures that directly or
indirectly avoided and/or reduced adverse effects to ESA-listed species anddesignated critical habitat. FWS_AR000144-48; see also FWS_AR000660-77.
 Required “Project Design Criteria” adopted from the governing land management
plan (Integrated Activity Plan) for the NPR-A like Project Design Criteria 4 whichstates, “The lease area and/or potential project areas may now or hereafter containmarine mammals. The BLM may require modifications to exploration anddevelopment proposals to ensure compliance with Federal laws, including the Marine
Mammal Protection Act (MMPA). The BLM would not approve any exploration ordevelopment activity absent documentation of compliance under the MMPA.”FWS_AR000677; see also FWS_AR000148.

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42 Project design features built into Conoco’s application to avoid and minimize adverse
effects on polar bear and designated critical habitat. FWS_AR000143; see also
FWS_AR000219-34.
2. The Service’s Section 7 jeopardy analysis on polar bears complied with
the ESA.
As part of its Section 7 jeopardy analysis, the Service first looked at potential
adverse effects of the Willow Project on polar bears in the action area. FWS_AR00074758. The Service determined that the primary potential adverse effect from the Willow
Project would be disturbance to both non-denning (transient) and denning polar bears.
With respect to non-denning bears, the Service explained that any potential disturbancewould be infrequent due to the following: (1) the location of the Willow Project as thevast majority of the action area is located far from the coast and in areas of low polar bearabundance; (2) the timing of activities as many activities would occur only during
summer when very few transient bears would be present; and (3) required specific andenforceable mitigation measures built into the Willow Project like minimum flight
altitudes and plans to avoid attracting bears, among others. FWS_AR000749. The
Service further explained that if non-denning polar bears are subjected to disturbance,
they would likely move away from the source of that disturbance, resulting only in minor,
temporary changes in behavior. Id.
The Service next analyzed potential disturbance effects on denning bears. The
Service identified potential types of adverse effects to denning bears from the Willow
Project but found that such effects would be minimal and/or unlikely because the vast
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majority of the Project would occur in areas of very low denning density and because“BLM [Required Operating Procedure] C-1 and 3 require den detection surveys prior toinitiating winter operations and the establishment of a 1-mile operational exclusion zone
around any detected dens.” FWS_AR000748. Additionally, while acknowledging thefact that no survey is perfect and captures every den, the Service used a sophisticatedmodel to account for the probability that a den is not detected through surveys and thenexposed to disturbance. FWS_AR000747-49. The Service’s model estimated a >84%
probability of zero denning bears suffering injury or mortality occurring over the 30-year
life of the Willow Project, and on that basis concluded that disturbance resulting in injury
or mortality to any denning bears is not reasonably certain to occur. FWS_AR00074849.
After analyzing this data regarding non-denning and denning bears, the Service
acknowledged that the Willow Project could “intermittently incidentally expose small
numbers of polar bears of the [Southern Beaufort Sea] stock to disturbance.”
FWS_AR000764. But the Service also determined that “most of those exposures would
not be biologically significant,” that “[t]he spatial and temporal distance between
disturbance events would limit the potential for impacts to be biologically significant to
individual bears,” and further reduced “the potential for biologically significant impacts
to individual bears to compound to effects at the [Southern Beaufort Sea] stock level, letalone the species level” at which the potential for jeopardy is assessed. Id. The Service
concluded that, even when accounting for potential climate change-related stressors in the
future, “we anticipate that the activities authorized under the Proposed Action would
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continue to impact small numbers of individual polar bears within the [Southern Beaufort
Sea] stock and would not appreciably affect the survival and recovery of the polar bear
species as a whole.” Id. For these reasons, the Service determined that the Willow
Project would not jeopardize the polar bear. Id; see also 50 C.F.R. § 402.02.
Additionally, after concluding “no jeopardy,” the Service acknowledged the Willow
Project’s additional protective measures like future compliance with the standards of the
MMPA which only bolstered the Service’s confidence in the already-established “nojeopardy” determination. FWS_AR000764. The Service’s “no jeopardy” determination
was consistent with the ESA, reasonable, supported by the record, and should be upheld.
3. The Service conducted an appropriate Section 7 adverse modification
analysis of the impacts on polar bear critical habitat.
After determining that the Willow Project would have minimal or no adverse
effects on individual polar bears, the Service next analyzed potential impacts todesignated critical habitat. FWS_AR000758-60, FWS_AR000765-66. The Service
determined that only a very small portion of the Willow Project would occur within ornear designated critical habitat, that the Willow Project has a very limited capacity toaffect such habitat through a few specific activities, and that adverse effects, if any,
would be minor. FWS_AR000758-60, FWS_AR000765-66. The Service explained its
conclusions for each critical habitat unit: Unit 1 – Sea Ice: The Service determined that the only manner in which the Willow
Project could affect sea ice was through project-related vessels spilling oil or otherpetroleum product into marine waters. FWS_AR000765. The Service determined
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that the potential for a marine oil spill would be minimized by compliance withspecific and enforceable operating procedures built into the proposed action, to
include Conoco’s spill prevention plans. Id.
 Unit 2 – Terrestrial Denning Habitat: The Service concluded that the Willow
Project would not appreciably diminish the conservation value of terrestrial denning
habitat based on the “very small” overlap between the Willow Project and terrestrial
denning habitat, and because the proposed activities are of “similar scope to ongoingroutine use and upgrades” in the only area where overlap does occur.
FWS_AR000765, FWS_AR000760 (stating that “no impacts to designated critical
habitat for terrestrial denning will result from the proposed project.”).
 Unit 3 – Barrier Islands: The Service explained that barrier islands could be affected
through disturbance and/or marine oil spills, but determined any potential effects to beminor and temporary. FWS_AR000765.
For these reasons, the Service determined that the Willow Project would not resultin adverse modification because the limited and minor effects would not appreciably
diminish the conservation value of the bear’s critical habitat. FWS_AR000765-66.
Additionally, like its jeopardy analysis, the Service opined that compliance with future
MMPA standards would provide “additional” and “further assurance” that actual adverse
effects would not exceed already-established “minor” levels. See e.g., FWS_AR000760,
FWS_AR000765-66. The Service’s “no adverse modification” analysis is consistent
with the ESA, reasonable, supported by the administrative record, and should be upheld.

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4. The Service’s Incidental Take Statement complies with the ESA
Finally, with its “jeopardy” and “no adverse modification” analyses as a backdrop,
the Service specifically addressed and quantified the amount of incidental takeanticipated to result from the Proposed Action. FWS_AR000766-67. Among otherthings, the Service acknowledged potential exposure and disturbance to non-denning(transient) and denning polar bears before determining that all associated effects from theProject were “expected to be in the form of short-term, minor changes in behavior which
do not create a likelihood of injury (much less cause injury), or are not reasonably certain
to occur and therefore would not constitute harassment or [any other] form of take as
defined by the ESA and implementing regulations (16 U.S.C. 1532 (19), 50 C.F.R.
§17.3).” FWS_AR000767. The Service next determined that, based on data reported
from similar operations in the region, “up to 2 bears may be hazed with non-lethal contact
rounds over the life of the project” in order to protect the lives of workers. Id.; see also
FWS_AR000930.
Accordingly, the Service quantified all non-hazing and hazing incidental take atzero and two, respectively. In other words, per 50 C.F.R. § 402.16, any exceedance of
these two limits – i.e., any non-hazing incidental take or more than two incidental hazing
events – would require reinitiation of Section 7 consultation. In light of the thorougheffects analyses, as outlined above, the Service’s incidental take determinations werereasonable, consistent with the ESA, supported by the administrative record, and should
be upheld.

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B. The Service’s ESA Analysis Is Reasonable and Plaintiffs Offer Nothing to
Rebut It.
Dissatisfied with the Service’s well-reasoned Section 7 determinations, Plaintiffs
levy a variety of challenges, but none resonate. SILA Br. 34-40; CBD Br. 30-37. Each isaddressed in turn below.
1. The Service’s Section 7 decisions did not rely on any MMPA protections.
Plaintiffs argue that the Service improperly relied on future unspecified MMPA
mitigation measures that are not reasonably certain to occur to reach its Section 7
conclusions. SILA Br. 34-37; CBD Br. 30-34. In support of this argument, Plaintiffs
rely heavily on a recent Ninth Circuit decision, Center for Biological Diversity v.
Bernhardt (“Liberty”), 982 F.3d 723 (9th Cir. 2020). Plaintiffs, however, are mistakenthat the Service’s Section 7 determination relied on future MMPA compliance. The
Service’s Section 7 determinations are founded only on inherent attributes of the Willow
Project (e.g., the location and timing of project activities) and specific mitigation
measures that are already incorporated into the proposed action (e.g., lease stipulations,land management plan requirements, commitments in Conoco’s application, etc.) and arethus specific, binding, and certain to occur. None of the factors upon which the Service
based its Section 7 determinations are contingent or dependent on future MMPA
mitigation measures. Furthermore, contrary to Plaintiffs’ suggestion, even if the Service
did rely on future MMPA mitigation (it did not), the Liberty decision does not apply here
because subsequently revised ESA regulations do not require a specific and binding planwith respect to future MMPA mitigation measures.
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a. The Service did not rely on future MMPA compliance for its
Section 7 determinations.
Plaintiffs incorrectly suggest that because the BiOp discussed the MMPA, it musthave relied on uncertain future mitigation measures to reach its ESA determinations.
SILA Br. 34-37; CBD Br. 30-34. A fair reading of the BiOp demonstrates that this is not
the case. The Service discussed extensively the MMPA and its requirement for BLM and
Conoco to comply with the statute’s broad substantive standards to ensure (1) small
number of take, (2) negligible impacts to the Southern Beaufort Sea polar bear stock, and(3) no unmitigable adverse impacts on the availability of the stock for subsistence uses.
That is to be expected given the close interplay between the ESA and MMPA withrespect to the polar bear, an ESA-listed marine mammal, and the fact the BLM would
affirmatively require documentation of MMPA compliance prior to the conduct ofactivities that could affect polar bears. But, as demonstrated in the conclusion sections of
the BiOp, the Service based its Section 7 determinations only on the fact that due to thelocation of the Willow Project and the minimal presence of polar bear individuals ordesignated critical habitat, adverse effects, if any, would be minor. FWS_AR000764-66.
For these reasons alone, the Willow Project would not jeopardize the polar bear or
adversely modify its designated critical habitat. Id.
i.

The Service’s jeopardy determination did not rely
on future MMPA mitigation measures.

As discussed, the Service based its “no jeopardy” determination only on thefollowing: (1) the location of the project as the vast majority of the action area is located
far from the coast and in areas of low polar bear abundance; (2) the timing of activities as
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many activities would occur only during summer when very few bears would be present;(3) mitigation measures built into the proposed action itself like minimum flight altitudes
and plans to avoid attracting bears, among others; (4) required den surveys; (5) required
one-mile operational exclusion zone around any detected dens; and (6) sophisticatedmodeling indicating >84% probability of zero disturbance or injury to denning bears
occurring over the 30-year life of the Willow Project. FWS_AR000764. After alreadyconcluding “no jeopardy,” the Service acknowledged the Willow Project’s additional
protective measures like future compliance with the substantive standards of the MMPA,
which only served to bolster the Service’s already-determined “no jeopardy” conclusion.
Id.17 Plaintiffs’ assertion that the Service relied on future, uncertain MMPA mitigation
measures is simply incorrect.
ii.

The Service’s no adverse modification
determination did not rely on subsequent MMPA
mitigation measures.

Like the Service’s jeopardy determination, its adverse modification determination
did not rely on future MMPA mitigation measures.

17

Under BLM’s Proposed Action, BLM would require Conoco to provide documentationof MMPA compliance (most likely a Letter of Authorization) prior to conducting
activities. Per the MMPA, the Service may authorize Conoco to take of small number ofpolar only if it finds, among other things, that the taking would have no more than a“negligible impact” on the Southern Beaufort Sea stock of polar bears. The Ninth Circuit
has acknowledged that activities having a negligible impact on the SBS stock of polar
bears (one of the 19 stocks which comprise the polar bear species) should have “little
potential” to jeopardize the continued existence of the polar bear species. CBD v.
Salazar, 695 F.3d 893, 913 (2012). The Service’s acknowledgment of that concept here
should not be surprising or controversial, but in any event the BiOp did not rely on thispoint when rendering its “no jeopardy” determination.
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50 Unit 1 – Sea Ice: The Service determined that the potential for a marine oil spill
would be low and any potential adverse effects further minimized by compliance withspecific required operating procedures and spill prevention plans. FWS_AR000765.
There is no mention of the MMPA in this portion of the BiOp with respect to oil
spills, much less a reliance upon any MMPA mitigation measures. With respect toimpacts to seals, the Service does mention the MMPA’s substantive standards – i.e.,
small number of take, negligible impacts to the Southern Beaufort Sea polar bearstock, and no unmitigable adverse impacts on the availability of the stock forsubsistence uses – as opposed to actual mitigation measures that “provide further
assurance” that the conservation value of sea ice critical habitat would not beappreciably diminished. Id. The “provide further assurance” language makes clearthat MMPA-related considerations increase the Service’s confidence in the relativelack of adverse impacts to sea ice but were not needed to reach that conclusion in thefirst instance.
 Unit 2 – Terrestrial Denning Habitat: The Service concluded that the proposed
action would not appreciably diminish the conservation value of terrestrial denning
critical habitat based on the “very small” overlap between the Willow Project andterrestrial denning habitat, and because the proposed activities are of “similar scope toongoing routine use and upgrades” in the only area where overlap does occur.
FWS_AR000765. The Service does not mention – much less rely upon – the MMPA
or any mitigation measures in making this finding.

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51 Unit 3 – Barrier Islands: The Service determined that barrier island critical habitat
could be affected by disturbance and/or marine oil spills, but also characterized any
potential effects as minor and temporary. Id. The Service does acknowledge that
Project Design Feature 4 and associated MMPA substantive compliance would
provide “significant additional protection for polar bears,” and that substantive
MMPA standards (i.e., small numbers, negligible impact, and no unmitigable adverse
impact on subsistence uses) would provide “assurance” that the conservation value ofbarrier islands would not be appreciably diminished. FWS_AR000766. But thesestatements simply expand upon the Service’s prior determination that any impacts
would only be “minor and temporary,” and were not included in what the Service“relied on” in determining that the Willow Project has limited capacity to adversely
affect barrier islands in the first instance.
Ultimately, the Service determined that only a very small subcomponent of theWillow Project’s activity would occur within or near designated critical habitat, that the
project has a limited opportunities to affect critical habitat, and, as a result, adverse
effects (if any) would be minor and would not result in adverse modification.
FWS_AR000765-66. While the Service recognized that compliance with future MMPA
standards would provide “additional” and “further assurance” that actual adverse effects
would not exceed already-established minor levels, it did not rely on compliance with the
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future take authorizations) in the first instance. Plaintiffs fail to demonstrate how theService’s Section 7 determinations are inconsistent with the ESA or unreasonable.
iii.

The Service’s discussion of MMPA substantive
standards was appropriate.

The Service’s discussion and acknowledgement that future MMPA processes
would occur and are an important means of reducing impact is appropriate – and an
expected and appropriate discussion given the interconnected relevance of both statutes
governing an ESA-listed marine mammal – and does not demonstrate a reliance for the
purposes of rendering a “no jeopardy” or “no adverse modification” determination.
Plaintiffs’ repeated statements that the Service relied on future MMPA mitigation
measures and one citation to BLM’s biological assessment, see SILA Br. 36;
BLM_AR301897, while ignoring context and intent of the Service’s BiOp, do not makethose assertions true. Taking Plaintiffs’ argument to its logical extreme would effectively
preclude the Service from ever discussing the interconnected nature of MMPA
substantive standards within a Section 7 consultation. That simply cannot be correct.
Setting aside Plaintiffs’ hyperbole and selective reading of the BiOp, it is clear that
their repeated assertions that the Service relied on future MMPA compliance, are simply
incorrect. The Service premised its Section 7 determinations only on inherent attributesof the Willow Project and specific mitigations measures already built into the proposed
action itself. None of the factors underpinning the Service’s Section 7 conclusion iscontingent or dependent on future uncertain MMPA mitigation measures.

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b. The 2019 ESA regulations would allow the analysis that
Plaintiffs claim occurred.
Even if the Service relied on future MMPA mitigation measures to reach its
determination (it did not), its actions are consistent with the 2019 ESA consultation
regulations (which Plaintiffs do not challenge in this case). As a result, the Ninth
Circuit’s recent Liberty decision is inapposite as it interprets the requirements of pre-2019
and now superseded ESA consultation regulations. Revised regulation 50 C.F.R. §402.14(g)(8) (effective October 28, 2019) governed the Willow Project Section 7
consultation and explicitly required the Service to consider future mitigation measuresincorporated into an action agency’s proposed action – here, BLM’s authorization of theWillow Project – “that are intended to avoid, minimize, or offset the effects of an action”
just like any other portions of the proposed action, including actions with adverse effects,“and do not require any additional demonstration of binding plans.” The ESA does not
require the Service to ignore beneficial effects of measures included in the proposed
action to avoid, minimize, or offset adverse effects unless BLM meets some heightenedbar of documentation regarding their commitment – like specific binding plans with aclear commitment of resources. 84 Fed. Reg. 44,976, 45,002-07.
To the contrary, the ESA requires the Service to consider the effects of the Willow
Project in its entirety, including aspects of the proposed action with adverse or beneficial
effects. 84 Fed. Reg. at 45,002-03. The Service is then required to issue an expert
opinion, using the best available science and data, on the potential effects of the Willow
Project on the polar bear and its designated critical habitat. Id. The revised regulation
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makes clear that it is BLM’s responsibility, as the action agency, to ultimately implement
the proposed action’s future mitigation measures to comply with both the ESA and theService’s expert opinion to avoid jeopardy and adverse modification. Id. Even if theService had relied on BLM’s and Conoco’s future compliance with MMPA substantive
standards for its Section 7 determinations here (and again, it did not), this would havebeen permissible under the relevant implementing regulations. Plaintiffs’ argument that
the Service’s Section 7 determinations inappropriately relied on future MMPA mitigation
measures fails.
2. The Service properly analyzed and quantified possible ESA take.
Plaintiffs argue that the Service failed to adequately account for and quantify ESA
incidental take from the Willow Project. SILA Br. 37-40; CBD Br. 35-36. To support
this argument, Plaintiffs rely on a handful of record cites that acknowledge orcontemplate possible exposure or disturbance of polar bears, but ignore other portions of
the BiOp explaining why such exposures and disturbances either (1) are not reasonably
expected to occur, or (2) would not affect polar bears in the manners necessary toconstitute “harassment” or other forms of “take” as defined under the ESA. Plaintiffs’
arguments regarding take are meritless.
Under the ESA, “[t]he term ‘take’ means to harass, harm, pursue, hunt, shoot,wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16
U.S.C. § 1532 (19). The ESA’s implementing regulations further define “harass” as “anintentional or negligent act or omission which creates the likelihood of injury to wildlife
by annoying it to such an extent as to significantly disrupt normal behavioral patterns . . .
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.” 50 C.F.R. § 17.3 (2019) (emphasis added). Therefore, an exposure or disturbance of apolar bear would not constitute “harassment” under the ESA unless the polar bear were“annoyed to such an extent as to significantly disrupt normal behavioral patterns” and alikelihood of injury resulted. Id.
Here, the Service identified various mechanisms through which polar bears could
be exposed to the proposed activities, acknowledged that various forms of exposures
could disturb small numbers of polar bears, assessed the potential for such disturbances tooccur, and analyzed whether any anticipated disturbances would harass other otherwise
take any polar bears. The Service then concluded that while “a few polar bears may
experience consequences resulting from the Proposed Action,” such consequences areunlikely to rise to the level of “take” as defined by the ESA. FWS_AR000758;
FWS_AR000767; see also supra Section III.A. The incidental take statement in the
BiOp further explains the Service’s expectation that incidental effects to polar bears
would be limited to “short-term, minor changes in behavior which do not create alikelihood of injury (much less cause injury),” and thus do not rise to the level of“harassment or [any other] form of take as defined by the ESA and implementing
regulations.” FWS_AR000767. Based on this analysis, the Services estimated that
number of incidental takes via disturbances to be zero. With respect to hazing, theService, based on the best available data, determined that this likely over the 30-year lifeof the Willow Project and set the hazing incidental take limit at two. FWS_AR000767.
These conclusions are reasonable and supported by the record.
SILA Plaintiffs further accuse the Service of inappropriately altering data
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indicating a “wide range of take” in the form of exposure and disturbance found in priordraft versions of the BiOp. SILA Br. 39-40. Nothing could be further from the truth. In
fact, the opposite is true. Rather than “ignore” the likelihood of take, the Service
squarely confronted the issue. With respect to denning bears, which are more sensitive to
disturbance, the Service ran 1,000 different iterations of a sophisticated model for the
specific purpose of objectively and quantitatively estimating the likelihood of take.
FWS_AR000747-49; FWS_AR000797; FWS_AR000926-27; FWS_AR000975. The
fact that 1,000 different model iterations suggest a wide range of hypothetical outcomesis hardly surprising. The data allowed the Service to reasonably predict the probability ofzero incidental take of denning polar bears occurring was >84%, and thus supported theService’s conclusion that “while it is possible that an undetected den or family group
could be impacted which would result in injury or mortality to one or more polar bears,
given the high probability of zero bears suffering injury or mortality over the life of the
project, such a scenario is not reasonably certain to occur.” FWS_AR000749;
FWS_AR000927. Not only did the Service reasonably conclude that a scenario with
<14% chance of occurring was not anticipated to occur, it was also reasonable for theService to “alter” – i.e., clarify – its explanation of the modeling results in the final BiOp
(especially given the apparent confusion that the draft BiOp language caused thePlaintiffs). SILA Plaintiffs’ arguments fall short.
Next, SILA Plaintiffs’ assertion that the Service’s statement that Willow will notcause “any form of take as defined by the ESA” is contradicted by its subsequent
statement that the Service “anticipate[s] that up to two bears may be hazed with nonSovereign Iñupiat for a Living Arctic et al. v. BLM et al.
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lethal contact rounds” over Willow’s project life, see SILA Br. 38, fares no better. Thereis no contradiction; these conclusions refer to two different incidental take analyses andquantifications (non-hazing take and hazing take). The Service thoroughly explained
why, while slightly possible, it did not expect any non-hazing incidental take, and why it
did expect hazing incidental take. There is no contradiction. If anything, providing
separate take estimates for non-hazing take (zero) and hazing take (up to two) is more
protective to polar bears, because it requires BLM to re-initiate consultation if even one
polar bear is incidentally harassed or otherwise taken through any means other thanhazing.
In sum, the Service analyzed and accounted for all possible polar bear take. Afteracknowledging that the Willow Project could disturb some polar bears, the Service
explained its expectation that no significant disruptions in behavioral patterns or
likelihood of injury (much less actual injury) would result, and reasonably concluded thatzero incidental takes via disturbance were anticipated to occur. FWS_AR0000766-67.
Meanwhile, the Service separately concluded that up to two takes via hazing were
anticipated. Id. The Service thus reasonably accounted for and quantified all possible
forms of take, and Plaintiffs’ arguments on this issue fail.
IV.

The Appropriate Remedy is Remand Without Vacatur
If the Court concludes that Defendants have failed to fully comply with the CWA,

ESA, or NEPA, Federal Defendants request an opportunity to provide additional briefing
as to the appropriate remedy. In short, the Court should remand the matter to theagencies to fix any errors, not vacate the Project decision. See Smith v. U.S. Forest Serv.,
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33 F.3d 1072, 1079 (9th Cir. 1994). “Although the district court has power to do so, it is
not required to set aside every unlawful agency action. The court’s decision to grant ordeny injunctive or declaratory relief under APA is controlled by principles of
equity.” Nat’l Wildlife Fed’n v. Espy, 45 F.3d 1337, 1343 (9th Cir. 1995). When equity
demands, the regulation or action “can be left in place while the agency follows thenecessary procedures.” Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1405 (9thCir. 1995) (citation omitted). Further, any remedy needs to be narrowly tailored toaddress the specific violation identified. Nat’l Wildlife Fed’n v. Nat’l Marine FisheriesService, 422 F.3d 782, 799-80 (9th Cir. 2005).
CONCLUSION
For the foregoing reasons, the Court should deny Plaintiffs’ Motion for Summary
Judgment, and grant Summary Judgment in favor of Federal Defendants.
Respectfully submitted this 26th day of May, 2021.
JEAN E. WILLIAMSActing Assistant Attorney General
United States Department of JusticeEnvironment and Natural Resources Div.
RICKEY TURNER
Senior Trial Attorney
Wildlife and Marine Resources Section
999 18th Street, South Terrace, Suite 370
Denver, CO 80202(303) 844-1373
rickey.turner@usdoj.gov/s/ Caitlin Cipicchio
CAITLIN CIPICCHIO
Trial Attorney, Natural Resources Section
P.O. Box 7611
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Washington, D.C. 20044(202) 305-0503(202) 305-0506 (fax)
caitlin.cipicchio@usdoj.gov
LAURA GLICKMAN
U.S. Department of JusticeEnvironment and Natural Resources Division
Environmental Defense Section
4 Constitution Square
150 M Street NE
Washington, D.C. 20002(202) 514-6390(202) 514-8865 (fax)laura.glickman@usdoj.gov
Counsel for Defendants
Of Counsel:
Mike Gieryic
Office of the Regional Solicitor
U.S. Department of the Interior
4230 University Drive, Suite 300
Anchorage, AK 99508
907-271-1420
mike.gieryic@sol.doi.gov
CERTIFICATE OF COMPLIANCE
Pursuant to Local Civil Rule 7.4(a)(3), I hereby certify that this memorandum
complies with the type-volume limitation of Local Civil Rule 7.4(a)(1), as modified by
ECF No. 100 (3:20-cv-00290-SLG) and ECF No. 96 (3:20-cv-308-SLG), because thismemorandum contains 15,318 words, excluding the parts exempted by Local Civil Rule7.4(a)(4). This memorandum has been prepared in a proportionately spaced typeface,
Times New Roman 13-point font, and I obtained the word count using Microsoft Word.
/s/ Caitlin Cipicchio
Caitlin Cipicchio

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CERTIFICATE OF SERVICE
I hereby certify that on May 26, 2021, a copy of the foregoing was served byelectronic means on all counsel of record by the Court’s CM/ECF system.
/s/ Caitlin Cipicchio
Caitlin Cipicchio

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