In March of this year the State of Alaska filed a lawsuit with the US Fish and Wildlife Service (USFWS) over the right to conduct a 3 dimensional (3D) seismic survey of the 10-02 Area of ANWR to update data Congress could use in its determination whether to allow exploration on the coastal plain. The lawsuit came after multiple requests in 2013 by the State of Alaska to the Dept. of Interior’s Secretary Sally Jewell and the USFWS AK Director Geoff Haskett to conduct a 3D survey. Each attempt was rebuffed by the Dept. of Interior stating that their internal legal counsel, in a 1987 informal opinion brief, had determined ANILCA states a timeline for such activity and that window had passed. Any further decision was for Congress to decide.
Since March the State of Alaska Dept. of Law has worked with a private law firm in pressing its case at US District Court in Anchorage (Alaska v. Jewell, 14-dv-00048). Judge Sharon Gleason is presiding over the case. Nine environmental groups have formally sided with the Dept. of Interior in their defense.
Specifically the question at hand is straightforward and involves forcing the USFWS and Dept. of Interior to accept for consideration an application to conduct a 3D survey. Secretary Jewell and the USFWS have already rejected the consideration process.
Timeline or no timeline?
Central to the State’s argument is the question of whether Congress set a timeline for which any exploration or study of the 10-02 was to take place. Congress clearly stated that the area would be studied to ascertain its mineral and ecological state. A report on this was ordered to be submitted by 1986 but was finally done by the Department in 1987. That report recommended to Congress to open the 1002 to exploration but what was not decided nor discussed was if the study could ever be updated in future. The State asserts that ANILCA and common sense maintains that the best information be made available to Congress for it to make any decision with no restricting timeline on that process.
The challenge of Judge Gleason will be in interpreting ANILCA and the will of Congress. No where in ANILCA is a date given with an explicit statement ending any study on the region. Instead a reporting deadline of 1986 was ordered without any order on if that ended the ability for future study. The environmental study indeed in ANILCA is ordered as “on going”. The Dept. of Interior which is strongly against development of the 10-02 as ordered by the White House believes ANILCA’s reporting deadline was also meant as an end of study deadline while the State of Alaska does not. The USGS indeed further studied the area multiple times after 1987 and submitted their most important study on the area in 1998. The data for the 1998 technical evaluation came from 2D seismic work done in 1983-84 but interpretation and further non-mechanical geologic and ecologic study continued afterwards.
It is likely a decision on the case will be reached in spring next year. The decision, if positive for the State of Alaska, will mean the USFWS must consider the 3D seismic study. Given the extreme opposition to the thought by the White House it is thought that the Dept. of Interior will deny the permit. In doing so at that point though the Department will be forced to legally justify its rejection. The State could then file a second lawsuit on this denial. That lawsuit would likely be heard in the 9th Circuit in San Francisco.
You can follow the case through www.law360.com and typing in the case number 3:14-cv-00048-SLG