Sunday, July 26, 2015

Federal judge rejects state effort to explore ANWR plain

Alaska Contract Staffing
Tim Bradner
Alaska Journal of Commerce

Alaska U.S. District Court Judge Sharon Gleason has dealt the State of Alaska another setback in efforts to conduct exploration of the Arctic National Wildlife Refuge’s coastal plain.

In a decision issued July 21, Gleason upheld Interior Secretary Sally Jewell’s interpretation that her authority to approve limited exploration of the 1.2-million-acre coastal plain expired in 1987.

State attorneys said they are still studying Gleason’s decision and have not yet decided on an appeal to the 9th Circuit Court.

“After we have had time to review it, we will evaluate our options,” said Corri Mills, spokeswoman for the Department of Law.

Under former Gov. Sean Parnell in 2013, the state had proposed a limited winter seismic program to gather more information on potential resources, arguing that Jewell’s authority had not expired and the 1980 Alaska National Interest Lands and Conservation Act, or ANILCA, required her to allow ongoing resource assessments and approve any third party proposal to do it, such as from the state.

After Interior agencies repeatedly rejected the state’s plan, the lawsuit was filed in federal court in 2014 and oral argument was held Jan. 20.

Exploration in the Arctic refuge has been a hotly-contested issue for years. The 18.9-million refuge was created in 1980 by Congress, as an expansion of an 8.9-million-acre wildlife range created in 1960. However, the coastal plain area was withheld from wilderness status by Congress and set aside for potential oil and gas exploration.

Under the 1980 law Congress must approve oil and gas development in the coastal plain but gave the Interior Secretary limited authority to conduct exploration to assess the resource potential.

Congress actually passed a bill approving ANWR exploration once, when both the U.S. House and Senate were under Republican leaderships, but then-President Bill Clinton vetoed the measure.

Former Alaska U.S. Sen. Ted Stevens tried a different tack, placing the question on a budget resolution, a procedure that is not subject to a Senate filibuster (which requires 60 votes to overcome) but the effort failed by one vote.

Bad luck and timing has played a part in foiling the state’s efforts in ANWR at times. Congress appeared close to approving exploration in 1988 and early 1989 but that ended when the tanker Exxon Valdez hit a reef in Prince William Sound in March, 1989, causing a major oil spill.

Meanwhile, ANILCA required Interior to do a resource assessment that included seismic exploration for the purpose of preparing a report to Congress by 1987. When the state submitted its proposal to continue exploration, Jewell ruled that her authority to allow it had expired.

State officials contended that the authority had not expired, and that under the language of the 1980 law the Secretary was actually required to approve an application from a third party.

Gleason disagreed, however, ruling that there was an ambiguity in the statutory language that required that deference be given to Interior’s interpretation that the authority had expired.

In her decision, Gleason wrote: “Congress authorized the Secretary to approve limited-duration exploratory activity on the coastal plain and ordered a report generated from these activities by 1987. Whether the statute authorizes or requires the Secretary to approve additional exploration after the submission of the 1987 report is ambiguous.

“The Secretary’s interpretation that her statutory authority and obligation to review and approve exploration plans ceased after 1987 report has been completed is based on a permissible and reasonable construction of the statute.”

The language in ANILCA is unambiguous as to the Secretary’s authority up until the deadline for the 1987 report but is silent, and therefore ambiguous, on any deadline after that, Gleason noted in the decision.

The state argued in the January trial that the lack of any explicit deadline for the authority meant that it continued in effect, while Interior argued that the lack of a deadline for continuing authority in the statute left 1987, when the report was required, as the only deadline.

The fact that Congress did not insert another, later date for any continuing authority after 1987 indicated that the body intended 1987 to be the final date, Interior officials argued in the trial.

Gleason noted that there could be alternative ways the language can be interpreted but that she was bound to defer to a reasonable construction of the statute by the agency.

“The Court need not find that the agency’s interpretation is the only permissible construction or that it is the Court’s preferred construction,” Gleason wrote, but noted that Interior had stuck with its interpretation since a legal opinion was written by the agency’s Solicitor in 2001. The consistency of the agency’s position was a factor in her decision, Gleason wrote.

The issue of exploring in the coastal plain has a long history. The area has high potential for significant oil and gas discoveries, federal agencies concluded in the 1987 review of resource potential.

Many geologists, government and industry, feel the coastal plain is the last remaining unexplored onshore region of Alaska with potential for very large oil discoveries, such as those made in the central North Slope region.

Inupiat leaders of the North Slope have largely favored ANWR exploration and development because it is onshore, where development can be done carefully, and not offshore, where there are threats to subsistence resources created by potential oil spills.

The Inupiats also have an economic stake in ANWR through a 91,000-acre inholding of surface and subsurface lands in the coastal plain where the surface lands are owned by Kaktovik Inupiat Corp. of Kaktovik and the mineral rights are held by Arctic Slope Regional Corp. of Barrow, the regional Alaska Native development corporation.

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